Silver et al. v. IMAX Corporation et al. [Indexed as: Silver v. IMAX Corp.]

110 O.R. (3d) 425

2012 ONSC 1047

Ontario Superior Court of Justice,

van Rensburg J.

March 28, 2012

Civil procedure -- Class proceedings -- Notice of certification -- Parallel class proceedings brought in Ontario and United States -- Ontario action certified as class proceeding -- Settlement class having been certified in U.S. proceeding for settlement purposes only -- Lead plaintiff in U.S. proceeding being member of global class certified in Ontario proceeding -- U.S. plaintiff having standing to participate in Ontario plaintiffs' motion for approval of notice of certification -- Notice of certification in Ontario proceeding required to give notice of existence of U.S. proceedings -- Overlapping class members not having received any notice in U.S. proceeding -- Notice in Ontario proceeding not postponed until notice was given in U.S. proceeding.

An Ontario action was certified as a class proceeding. The court certified a global class consisting of "All persons, other than the Excluded Persons, who acquired securities of IMAX during the Class Period on the TSC and on the NASDAQ, on or after February 17, 2006, and held some or all of those securities at the close of trading on August 9, 2006." The plaintiffs moved for approval of notice of certification. TMF, a U.S.-based mutual fund that acquired more than one million shares of IMAX on the NASDAQ during the relevant period, was the lead plaintiff in a proposed class action in the United States as well as a member of the global class certified in the Ontario action. It brought a motion seeking the right to participate or intervene in the Ontario proceeding for the limited purpose of providing evidence and submissions relating to the issue of the content and timing of notice of certification. When that motion was launched, a class action had not yet been certified in the U.S. proceedings. By the time it was heard, a settlement class had been certified for settlement purposes only and an order preliminarily approving final [page426] settlement (the "preliminary order") had been signed. The preliminary order directed the IMAX defendants to bring a motion in the Ontario proceedings to amend the class to exclude the members of the U.S. settlement class who did not opt out of the U.S. proceedings. That motion was scheduled to proceed in several months.

Held, the plaintiffs' motion and TMF's motion should be granted.

TMF had standing to participate in the plaintiffs' motion. At this stage, overlapping class members had not received any notice in the U.S. proceeding. Because there was another class proceeding pending, which might in the future affect overlapping class members' interests, and in which they might receive notices, the notice issued in the Ontario proceeding should inform class members of the existence of the U.S. proceeding. In order to ensure that there was no confusion, they should be specifically advised that it was unnecessary for a class member to opt out of the Ontario proceeding in order to participate in the U.S. proceeding. There was no need to postpone the notice in the Ontario proceeding until notice had been given in the U.S. proceeding.

MOTION for approval of a notice of certification.

Cases referred to

Canada Post v. Lépine, [2009] 1 S.C.R. 549, [2009] S.C.J. No. 16, 2009 SCC 16, 387 N.R. 91, 304 D.L.R. (4th) 539, 67 C.P.C. (6th) 201, EYB 2009-156806, J.E. 2009-620; Mignacca v. Merck Frosst Canada Ltd. (2009), 2009 10059 (ON SCDC), 95 O.R. (3d) 269, [2009] O.J. No. 821, 247 O.A.C. 322, 71 C.P.C. (6th) 350, 176 A.C.W.S. (3d) 36 (Div. Ct.), consd

Other cases referred to

1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2004), 2004 16620 (ON SCDC), 70 O.R. (3d) 182, [2004] O.J. No. 865, 184 O.A.C. 298, 50 C.P.C. (5th) 25, 129 A.C.W.S. (3d) 455 (Div. Ct.), affg (2002), 2002 6199 (ON SC), 62 O.R. (3d) 535, [2002] O.J. No. 4781, [2002] O.T.C. 963, 28 C.P.C. (5th) 135, 118 A.C.W.S. (3d) 530 (S.C.J.); Abdula v. Canadian Solar Inc., [2011] O.J. No. 4067, 2011 ONSC 5105, 92 B.L.R. (4th) 324, 206 A.C.W.S. (3d) 736 (S.C.J.); Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3rd Cir. 1993); Berry v. Pulley (2011), 106 O.R. (3d) 123, [2011] O.J. No. 927, 2011 ONSC 1378 (S.C.J.); Campbell v. PriceWaterhouseCoopers, LLP, 2008 U.S. Dist. LEXIS 44795 (E.D. Cal.); Canadian Commercial Workers Industry Pension Plan v. Royal Group Technologies Ltd., [2007] O.J. No. 3686, 160 A.C.W.S. (3d) 593 (S.C.J.); Currie v. McDonald's Restaurants of Canada Ltd. (2005), 2005 3360 (ON CA), 74 O.R. (3d) 321, [2005] O.J. No. 506, 250 D.L.R. (4th) 224, 195 O.A.C. 244, 7 C.P.C. (6th) 60, 137 A.C.W.S. (3d) 250 (C.A.); Dabbs v. Sun Life Assurance Co. of Canada (1998), 1998 7165 (ON CA), 41 O.R. (3d) 97, [1998] O.J. No. 3622, 165 D.L.R. (4th) 482, 113 O.A.C. 307, 7 C.C.L.I. (3d) 38, 27 C.P.C. (4th) 243, [1999] I.L.R. I-3629, 82 A.C.W.S. (3d) 638 (C.A.); Dominion of Canada General Insurance Co. v. Kingsway General Insurance Co., [2011] O.J. No. 811, 2011 ONSC 1249, [2011] I.L.R. I-5110, 12 C.P.C. (7th) 145 (S.C.J.); Frohlinger v. Nortel Networks Corp., 2007 696 (ON SC), [2007] O.J. No. 148, 40 C.P.C. (6th) 62, 154 A.C.W.S. (3d) 542 (S.C.J.); Hall v. Midland Group, 275 F.3d 35 (3rd Cir. 2001), affg 2000 U.S. Dist. LEXIS 16751 (E.D. Pa.); In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981), cert. denied 456 U.S. 998, 102 S. Ct. 2283, 73 L. Ed. 2d 1294 (1982); In re IMAX Securities Litigation, 272 F.R.D. 138 (S.D.N.Y. 2010); In re IMAX Securities Litigation, 2011 U.S. Dist. LEXIS 41709 (S.D.N.Y); In re Prudential Insurance Co. of America Sales Practices Litigation, 133 F.3d 225 (3rd Cir. 1998), revg on other grounds 962 F. Supp. 450 (D.N.J. 1997); In re Vivendi Universal, S.A. Securities Litigation, 242 F.R.D. 76 (S.D.N.Y. 2007); Larson v. Sprint Nextel Corp., 2009 U.S. Dist. LEXIS 39298 (D.N.J.); Maher v. Zapata Corp., 714 F.2d 436 (5th Cir. 1983); McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314, 158 A.C.W.S. (3d) 12 (S.C.J.); Metzler Investment GmbH v. Gildan Activewear Inc., [2011] O.J. No. 885, 2011 ONSC 1146, 17 C.P.C. (7th) 190 (S.C.J.); Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1; [page427] Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, 177 L. Ed. 2d 535 (2010); O'Neil v. SunOpta, Inc., [2010] O.J. No. 5251, 2010 ONSC 2735, 6 C.P.C. (7th) 438 (S.C.J.); Peixeiro v. Haberman (1994), 1994 7322 (ON SC), 20 O.R. (3d) 666, [1994] O.J. No. 2459, 25 C.C.L.I. (2d) 6, 33 C.P.C. (3d) 388, 51 A.C.W.S. (3d) 33 (Gen. Div.); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985); Silver v. Imax Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585, 86 C.P.C. (6th) 273 (S.C.J.) [Leave to appeal refused (2011), 105 O.R. (3d) 212, [2011] O.J. No. 656, 2011 ONSC 1035, 80 B.L.R. (4th) 228 (Div. Ct.)]; Tiboni v. Merck Frosst Canada Ltd., 2008 37911 (ON SC), [2008] O.J. No. 2996, 295 D.L.R. (4th) 32, 60 C.P.C. (6th) 65 (S.C.J.); Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, 2001 SCC 46, 201 D.L.R. (4th) 385, 272 N.R. 135, [2002] 1 W.W.R. 1, J.E. 2001-1430, 94 Alta. L.R. (3d) 1, 286 A.R. 201, 8 C.P.C. (5th) 1, 106 A.C.W.S. (3d) 397

Statutes referred to

Civil Code of Québec, S.Q. 1991, c. 64 [as am.] Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 8(1)(f), 12, 14, 17, (3), (6), 19(1), 20 Securities Act, R.S.O. 1990, c. S.5, s. 138.9 [as am.], (1)(a) [as am.]

Rules and regulations referred to

Federal Rules of Civil Procedure (United States), rule 23(c)(2) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13.02

Authorities referred to

Jones, Craig, and Angela Baxter, "Fumbling Toward Efficacy: Interjurisdictional Class Actions After Currie v. McDonald's" (2006), 3 Can. Class Action Rev. 405

D. Lascaris, D. Bach and M. Robb, for plaintiffs. D. Peebles, for defendants. J. Leon and E. Hoaken, for The Merger Fund.

VAN RENSBURG J.: -- Introduction

[1] This action was certified as a class proceeding in December 2009. [^1] The court certified a global class consisting of

[a]ll persons, other than the Excluded Persons, [^2] who acquired securities of IMAX [Corporation] during the Class Period on the TSX and on the NASDAQ, on or after February 17, 2006 and held some or all of those securities at the close of trading on August 9, 2006. [page428]

[2] Approximately 85 per cent of the securities acquired by class members in the Ontario action were purchased on the U.S. electronic stock exchange, the NASDAQ, and therefore fall within a proposed class in proceedings that are pending in the United States District Court, Southern District of New York (the "U.S. Proceedings").

[3] This is my decision with respect to the plaintiffs' motion to approve the form and content, timing and dissemination of notice of certification of this action as a class proceeding and the press release required under s. 138.9 of the Securities Act, R.S.O. 1990, c. S.5, as well as my decision with respect to a motion by The Merger Fund ("TMF"), the lead plaintiff in the pending U.S. proceedings, to participate in these proceedings in order to oppose the issuance of notice at this time to the certified class and to address the content of the notice.

[4] For the reasons that follow, I have recognized the standing of TMF to participate in the motion respecting notice, and I have concluded that notice of certification shall issue in the form I have approved, with publication of the notice and the opt-out date, according to the schedule provided in these reasons. The final form of press release proposed by the plaintiffs, with the amendment proposed by the defendants and agreed to by the plaintiffs, is approved on consent. [^3] Background to the Motions

[5] The certification order approved the general form of the notice of certification, and provided for the giving of notice to the class members and for establishing the opt-out procedure. The date for publication of the notice of certification and the closing date for receipt of the opt-out notices were to be fixed by further order of the court. The certification order provided for notice to be distributed in accordance with an amended litigation plan, with the plaintiffs and defendants each paying 50 per cent of the costs of the notice program and the costs of Howie & Partners LLP, the administrator of the notice and opt-out program.

[6] Leave to appeal the certification and leave decisions was refused by Corbett J. on February 14, 2011 (2011), 2011 ONSC 1035, 105 O.R. (3d) 212, [2011] O.J. No. 656 (Div. Ct.). [^4] In April 2011, plaintiffs' [page429] counsel brought a motion for final approval of the form and content of notice to the class members, and to fix the date for publication of the notice of certification as June 30, 2011 and the final date for the receipt of opt-out forms as September 28, 2011. [^5]

[7] The motion to approve the notice, and the publication and opt-out dates was originally returnable May 3, 2011. The court was advised on April 29 that it was likely that the motion would be on consent or unopposed, with certain minor revisions to the proposed certification notice and plan of dissemination. [^6] Accordingly, the parties requested a teleconference rather than an in-person attendance to address the motion.

[8] The form of notice that the plaintiffs originally sought to have approved by the court contained no reference to the U.S. Proceedings.

[9] On May 2, 2011, the day before the scheduled return date of the motion, this court received a letter from Jill Abrams of Abbey, Spanier, Rodd & Abrams LLP ("Abbey Spanier"), counsel for TMF, the lead plaintiff in the U.S. Proceedings. TMF sought to delay the issuance of the certification notice in this action until after a certification motion was determined in the U.S. Proceedings.

[10] TMF is a U.S.-based mutual fund that acquired more than one million shares of IMAX Corporation ("IMAX") common stock on the NASDAQ between February 17, 2006 and August 9, 2006, and continued to hold more than 600,000 shares in IMAX at the close of trading on August 9, 2006. As such, TMF is a member of the global class certified in this proceeding, as well as the lead plaintiff in the U.S. Proceedings.

[11] Ultimately, TMF retained Ontario counsel and brought a motion seeking the right to participate or intervene in this proceeding for the limited purpose of providing evidence and submissions relating to the issue of the content and timing of notice of certification. [page430]

[12] The two motions, for leave to participate and for approval of notice to the class, were argued in September 2011. The materials before the court consisted of the following: two affidavits of Jill S. Abrams, lead counsel for TMF in the U.S. Proceedings, affidavits and supplementary affidavits of two expert witnesses, Professor Patrick J. Borchers (retained by class counsel) and Professor Geoffrey P. Miller (retained by TMF), [^7] a transcript of the cross-examination of Ms. Abrams, with copies of exhibits to the examination and a refusals and undertakings chart, a solicitor's affidavit attaching copies of the judgment and various documents in the Vivendi Securities Class Action, [^8] a solicitor's affidavit responding to such affidavit, and facta and briefs of authorities from class counsel and TMF.

[13] As I have already noted, prior to the proposed intervention of TMF, counsel for the defendants in these proceedings supported the plaintiffs' motion respecting notice. They did not file any materials in respect of either motion, indicating at the hearing that they did not object to the participation of TMF and that they supported TMF's position that notice to the class members should await the certification decision in the U.S. Proceedings. The U.S. Proceedings

[14] At the time the motion materials for leave to intervene and for approval of the notice were filed, the U.S. Proceedings were pending, but a class action had not yet been certified. The U.S. Proceedings were described in an endnote to my certification decision as follows:

There is a parallel proceeding pending against IMAX, Gelfond, Wechsler, Joyce and Gamble, as well as Price Waterhouse Coopers (both the Delaware and Ontario limited liability partnerships) in the United States District Court, Southern District of New York (the "U.S. Proceedings"). Initially several [page431] proceedings were commenced in the U.S., which were consolidated. A Consolidated Amended Class Action Complaint was filed in October 2007. The amended complaint, while alleging substantially the same facts as are pleaded in the Ontario proceedings, is broader in scope, dealing with IMAX's revenue recognition on theatre systems from 2002 to 2006. The defendants' motion to dismiss the claim was dismissed in September 2008 (587 F. Supp. 2d 471 (S.C.N.Y. 2008).

The proposed class in the U.S. Proceedings is shareholders who purchased the Company's common stock between February 27, 2003 and July 20, 2007 on both NASDAQ and the TSX. In the U.S. Proceedings, the lead plaintiff Westchester Capital Management, Inc. ("Westchester") filed a motion seeking certification of a class encompassing both NASDAQ and TSX purchasers of IMAX securities, which motion was opposed by the defendants. By order dated March 13, 2009, the U.S. court denied the certification motion without prejudice, pending the resolution of the proposed motion of another purported class member, Snow Capital Investment Partners, L.P. ("Snow") for the court to reconsider its January 17, 2007 order appointing Westchester Capital Management, Inc. as lead plaintiff in the U.S. Proceedings. By order dated June 30, 2009, Snow replaced Westchester as the lead plaintiff. The certification issue remains to be determined in the U.S. Proceedings. [^9]

[15] Originally, the U.S Proceedings sought certification of a global class; however, this was precluded by a 2010 decision of the United States Supreme Court, Morrison v. National Australia Bank Ltd., [^10] in which the court determined that Rule 10b-5 (the statutory cause of action relied on in the U.S. Proceedings) is available only to those who purchased their securities over a U.S. stock exchange, or otherwise in the United States. As a result, the U.S. Proceedings can only address the claims of those who traded IMAX shares on the NASDAQ or purchased their shares in the United States. This does not mean, however, that the class sought to be certified in the U.S. is purely domestic. It will include NASDAQ purchasers from outside the United States, including Canadian residents who purchased their IMAX shares over the NASDAQ. [^11]

[16] The U.S. Proceedings encompass a longer class period (four years) and would include only purchasers of IMAX shares on the NASDAQ. The defendants in that action do not include some of the defendants to these proceedings, but do include [page432] IMAX's auditors at the relevant time. When comparing the two proceedings, there are three distinct groups of actual or potential class members. There are the class members who fall within the class period of this action and traded on the TSX (the "TSX purchasers") whose claims can be determined in this action but not in the U.S. Proceedings; there are the potential U.S. action-only class members, who traded on the NASDAQ within the U.S. class period, but not in the period covered by this class proceeding; and there are potential overlap class members whose trades in IMAX shares on the NASDAQ fell within the period covered by this action and within the U.S. class period (referred to in these reasons as the "overlapping class members" or the "NASDAQ purchasers").

[17] Since the global class was certified in these proceedings, the following events occurred in the U.S. Proceedings: Snow Capital's motion for certification was denied in December 2010. [^12] On April 14, 2011, TMF was appointed lead plaintiff, replacing Snow Capital, and Abbey Spanier, the firm that had represented Westchester Capital, the original lead plaintiff, was reappointed lead counsel. [^13] The presiding judge, Judge Buchwald, made a scheduling order on June 3, 2011 in respect of TMF's certification motion. The motion for certification in the U.S. Proceedings was briefed by the time the pending motions were argued in this court in September 2011.

[18] The anticipated progress of the U.S. Proceedings was addressed in the materials filed for the motion before this court. Ms. Abrams, as counsel for TMF in the U.S. Proceedings, and TMF's expert witness, Professor Miller, predicted that a decision on certification could reasonably be expected by the end of 2011, while the plaintiffs' expert, Professor Borchers, was less optimistic, suggesting several scenarios in which the U.S. certification motion would not be determined until mid- 2012 or, if there were lengthy appeals, as late as 2015. [page433] Proposed Settlement of the U.S. Proceedings

[19] At the hearing of the motions on September 9, counsel for TMF reported that settlement discussions were underway in the U.S. Proceedings and that Judge Buchwald had set a deadline by which the parties were to report on their progress. This was information known to Canadian defence counsel, but not to class counsel in these proceedings. [^14]

[20] In October 2011, Ontario counsel for TMF informed this court by letter that settlement discussions were continuing in the U.S. Proceedings and that deadlines had been extended for reporting to Judge Buchwald. On November 3, 2011, Ontario defence counsel advised that the plaintiff and defendants in the U.S. Proceedings had signed and submitted to Judge Buchwald a Memorandum of Understanding ("MOU") that would settle all claims against IMAX on behalf of the members of the class in the U.S. Proceedings. Counsel stated in his letter:

We will discuss with counsel for the Plaintiffs in our case the appropriate manner in which to address Your Honour as to the effect of the proposed resolution of the U.S. litigation on the remaining members in the Canadian case, and we would expect to be in touch shortly to schedule a case teleconference.

[21] A teleconference was convened, and ultimately I requested and received the parties' positions in writing by December 21, 2011. Counsel attended for further argument on January 12, 2012.

[22] As a result of such written submissions and argument, the following relevant facts emerged about the proposed settlement in the U.S. Proceedings:

-- The MOU was not a public document when it was signed and, accordingly, was not provided to the plaintiffs' counsel in this action or to this court.

-- While the MOU is binding on the parties that signed it (all of the defendants in the U.S. Proceedings and the lead plaintiff, TMF), the agreement set out in the MOU is not a settlement, but a "proposed settlement".

-- The proposed settlement is subject to a number of conditions, which include a motion for preliminary approval of the settlement and the form of opt-out and objection notice [page434] to be published by the U.S. court, recognition of the settlement in this action (more on this below) and a final fairness hearing in the U.S. Proceedings.

-- It is intended that the proposed settlement will finally settle all claims in the U.S. Proceedings, against all defendants.

-- At the time of the attendance before this court in January, the parties to the MOU were completing their confirmatory documentary review, or due diligence, and drafting a stipulation and agreement of settlement to be submitted to Judge Buchwald by January 26.

-- The MOU would become a public document at the time the stipulation was filed.

[23] Typically, settlements in cross-border class actions that have come before a Canadian court for consideration have involved the resolution of all pending proceedings. [^15] This is not a typical case. The defendants intend to settle only the U.S. Proceedings; [^16] however, the settlement will depend on this court recognizing and giving effect to the settlement by carving out of the certified class the overlap class members who do not opt out of the U.S. settlement.

[24] In argument on January 12, counsel for the defendants and Ontario counsel for TMF submitted that persons who do [page435] not opt out of the U.S. settlement (and so become bound by it) should not continue as members of the global class. As such, after preliminary approval of the proposed settlement and the form of opt-out and objection notice by the U.S. court, a motion will be brought in this court to amend the global class definition in these proceedings to exclude or carve-out persons bound by a final settlement order (when issued) in the U.S. Proceedings. The final step will be a motion to the U.S. court for final approval of the U.S. settlement.

[25] On January 27, defence counsel provided to this court and to plaintiffs' counsel in these proceedings a copy of the documents filed with the U.S. court the previous day, consisting of a stipulation and agreement of settlement, and other materials seeking an order for preliminary approval of class action settlement, conditional class certification and approval of a notice plan.

[26] An Order Preliminarily Approving Final Settlement and Providing for Notice (the "Preliminary Order") was signed by Judge Buchwald on January 31, 2012. That order preliminarily certifies a settlement class for settlement purposes only, and preliminarily approves the stipulation and settlement set forth therein as fair, just, reasonable and adequate as to the settlement class members, and in the best interests of the class, subject to notice to the settlement class and further consideration at a fairness hearing.

[27] The Preliminary Order directs that, as soon as practical following the date of the order, the IMAX defendants will make a motion in this court to exclude the members of the U.S. settlement class who do not opt out of the U.S. Proceedings. After this court issues an order amending the class definition, then notice will be given to settlement class members, with notice of the date and location of the fairness hearing, and provisions for opting out. The order preliminarily approves the notice to the settlement class members, which will not be issued until the class has been amended in these proceedings. In the interim, the U.S. Proceedings are stayed pending further order of the court. If the stipulation is terminated or cancelled or fails to become effective for any reason, the parties will revert to their respective status in the U.S. Proceedings as of November 2, 2011, including with respect to class certification. [^17]

[28] While the Preliminary Order approves the form and content of notice to the U.S. settlement class, I am advised that U.S. [page436] counsel have agreed to an amendment to meet certain concerns expressed by plaintiffs' counsel in these proceedings. The form of notice that is anticipated to be issued in the U.S. will be addressed in greater detail later in these reasons.

[29] The motion to amend the class (the "Amending Motion") is not before the court at this time, although it is scheduled to proceed in June. I am told that there is no precedent for the Amending Motion; this will be the first time such a motion will be brought in class proceedings in Canada, where the moving parties will seek to determine in advance whether a judgment confirming a settlement of a class proceeding in the U.S. would be accorded preclusive effect in Canada. If the class is not amended by this court, the proposed settlement will fail.

[30] The Amending Motion was discussed only in a preliminary way at the last attendance where it was apparent that counsel disagree about the court's jurisdiction to make the order, the appropriate test and the relevant evidence to be considered by the court. Issues

[31] As the foregoing indicates, the ground has shifted significantly since the motions before this court were initiated. At the outset, the parties were concerned about what would happen if the Ontario proceedings were to result in judgment in advance of the U.S. Proceedings. The focus of the experts was on the implications of the Ontario proceedings moving ahead to trial or settlement, before the U.S. Proceedings were determined or even certified, and whether a judgment of this court would be given preclusive effect in the U.S. with respect to the claims of overlapping class members. The timing and content of notice in this case were argued in the context of the recognition of any decision of this court as precluding claims against IMAX in the U.S. Proceedings. For that reason, U.S. law on notice, class proceedings and conflicts of laws was relevant. The key debate between the experts was whether, and to what extent, notice to the class in these proceedings would need to refer to the U.S. Proceedings.

[32] In arguing the motions in this court, TMF asserted (and IMAX ultimately agreed) that overlapping class members should be given a fully informative notice only after a certification decision in the U.S. so that they could exercise an informed choice whether to opt out of the Ontario proceedings, and ideally so that they could elect between participation in the Ontario proceedings and the U.S. Proceedings.

[33] Now that the U.S. Proceedings are preliminarily certified for settlement purposes, the timing issue has shifted. Now the [page437] question is whether notice of certification to class members in these proceedings should be delayed until at least after this court has determined the Amending Motion, on the basis that the choices for the NASDAQ purchasers will be clear only after this motion has been decided, and that a two-stage procedure (notice now and then perhaps after the class has been amended) would be inefficient, ineffective and needlessly expensive. The question remains whether notice to the class members should reference the U.S. Proceedings and, if so, what information should be included.

[34] The preliminary issue, TMF's standing to participate in the motion, will be addressed first, followed by the question of the timing and content of notice of certification.

Issue no. 1: Standing of TMF to participate in the motion A. Positions of the parties

[35] TMF argued that it should have standing in its capacity as a member of the global class certified by this court. TMF asserted that it prefers to have its rights adjudicated under U.S. law in the U.S. Proceedings, if certified, that it would be unfairly prejudiced by being forced to elect whether to opt out of the Canadian action before a certification decision is reached in the U.S. Proceedings and that it is possible that other U.S. purchasers may also prefer the U.S. Proceedings to this action if provided with the appropriate information at the appropriate time.

[36] Plaintiffs' counsel argued that TMF should not be granted leave to participate because (a) the composition of the class has not yet crystallized so that TMF is not a class member and (b) TMF has already stated an intention to opt out of the class in these proceedings, so it has no real interest in this matter. Plaintiffs' counsel submitted that TMF meets none of the requirements for intervention, and that its intervention would only serve to delay and complicate the Ontario proceedings.

[37] Defence counsel initially took no position on the participation motion, but ultimately supported TMF's involvement as well as the position taken by TMF with respect to the substantive issues. B. Analysis and decision on standing issue

[38] Section 14 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "CPA") provides for the participation of class members at any time in a class proceeding with leave of the court as follows:

14(1) In order to ensure the fair and adequate representation of the interests of the class or any subclass or for any other appropriate reason, the [page438] court may, at any time in a class proceeding, permit one or more class members to participate in the proceeding.

(2) Participation under subsection (1) shall be in whatever manner and on whatever terms, including terms as to costs, the court considers appropriate.

[39] In Dabbs v. Sun Life Assurance Co. of Canada (1998), 1998 7165 (ON CA), 41 O.R. (3d) 97, [1998] O.J. No. 3622 (C.A.), O'Connor J.A. observed, at para. 7:

Section 14 gives the court a broad discretion to permit class members to participate in a proceeding and to provide for the manner and terms upon which the participation is permitted . . . The section does not restrict participation to those class members who are able to fairly and adequately represent the class. Indeed, the court may permit participation by those who oppose the manner in which the party representing the class is conducting the proceeding and who assert positions that differ from those of the majority of the class.

[40] Section 14 permits participation with leave of the court by class members "at any time in a class proceeding". The objective is to protect the interests of class members. The right to participate with leave recognizes that at times the position adopted by class counsel may not be representative of the interests of all or some of the class members. Participation by a class member may be the only way to bring before the court relevant information or evidence.

[41] TMF falls within the definition of the global class and there is no question that TMF is a class member unless or until it opts out of the Ontario proceedings. With respect to TMF's stated intention to opt out of the class, it was made clear in argument that such intention would depend on there being a certified class in the U.S. In other words, TMF wants to keep its options open to participate in these proceedings if certification is refused in the U.S.

[42] TMF is a member of the global class and falls within the ambit of s. 14 of the CPA. When TMF first sought leave to participate, counsel for both the plaintiffs and the defendants were ad idem as to the form, content and timing of notice of certification in these proceedings. TMF had an important perspective to bring to the court as the lead plaintiff in parallel proceedings in another jurisdiction. TMF's counsel brought expert evidence before the court, and ultimately joined issue with the plaintiffs' counsel on the important question of what notice would be required under U.S. law in order that any judgment of this court would be recognized and have preclusive effect, so as to bind overlapping class members who do not opt out of the U.S. Proceedings.

[43] Ordinarily, one might expect the issue of the preclusive effect of proceedings, and hence the substance of the notice to be of particular importance to a defendant. In this case, while the [page439] defendants opposed the certification of a global class, they did not take issue with the content and timing of notice of certification until well after this motion was underway. Indeed, the notice was approved in a preliminary way at the time of certification. [^18]

[44] Once there was a pending proposed settlement in the U.S., the position of defence counsel became directly aligned with that of TMF. If this had been the case at the outset, when the motion for approval of the notice was first brought, the participation of TMF might well have been unnecessary. In the unusual circumstances of this case, including the fact that this is a case of first impression, I recognize the right of TMF to participate in this motion and, as such, I have considered its evidence and submissions both before and after the proposed settlement was entered into in the U.S. Proceedings.

[45] In view of my decision, it is unnecessary to determine whether intervention could or should be permitted under the alternative grounds argued by TMF, as a friend of the court under rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I tend to agree with plaintiffs' counsel that intervention under this rule, that is, as a neutral friend of the court, is not available to persons, such as TMF, who have a personal or financial interest in the substantive dispute: Peixeiro v. Haberman (1994), 1994 7322 (ON SC), 20 O.R. (3d) 666, [1994] O.J. No. 2459 (Gen. Div.), at paras. 19-21; Dominion of Canada General Insurance Co. v. Kingsway General Insurance Co., [2011] O.J. No. 811, 2011 ONSC 1249 (S.C.J.), at paras. 29-30; and McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314, 158 A.C.W.S. (3d) 12 (S.C.J.), at para. 11, where Winkler J. observed that the proper procedure for participation by a class member is a motion under s. 14, and that ss. 12, 14 and 19(1) of the CPA render the general rule regarding intervenors inapplicable insofar as class members are concerned.

Issue no. 2: Notice of certification in the Ontario proceedings

[46] The main issues for determination by the court are the timing and content of notice of certification in these proceedings. In particular, should notice be given now, or should notice be delayed until some future date, and if notice is issued now, what, if anything, should be said about the U.S. Proceedings? The [page440] scheme of distribution for the notice and the method and timing of opting-out, if notice is to be given now, are not at issue. [^19] A. Positions of the parties

[47] Plaintiffs' counsel seek to issue a notice that does not make reference to the U.S. Proceedings, arguing that there is no requirement for disclosure of parallel proceedings under Canadian law or U.S. law (which is relevant if any judgment of this court is to have preclusive effect in the U.S.). Any reference to the U.S. Proceedings would be confusing and unnecessary and would not assist class members in making an informed decision whether to opt out of the Ontario action, which is the only decision they are required to make at this time.

[48] TMF argues that the draft notice that was originally prepared by the plaintiffs' counsel is deficient in that it does not refer at all to the U.S. Proceedings. Further, TMF asserts that the notice fails to provide NASDAQ purchasers with key information they would need in order to make an informed opt-out decision. Unless a "fully descriptive" notice is provided, there remains a significant risk that a U.S. court would not give full faith and credit to a judgment or settlement in this court in relation to NASDAQ purchasers who had not opted out. This would be an undesirable outcome and is incompatible with the goals of achieving a fair and orderly process for the resolution of the dispute.

[49] It was TMF's position initially that the members of the overlapping class should receive notice only after the certification motion in the U.S. Proceedings is determined. Only at that time would it be possible to craft a notice that complies with notice requirements under Canadian and U.S. law by providing information relevant to the NASDAQ purchasers' decision about whether to remain in, or opt out of, the Ontario action.

[50] With the most recent developments in the U.S. Proceedings, TMF and the defendants assert that, if notice were to issue now, there would be additional and unnecessary expense, as well as confusion. If the Ontario class is amended and other terms of the U.S. settlement have been met, notice can be issued at the time that notice of the pending settlement is given in the U.S. Proceedings. If that occurs, then complementary notices could go out in both actions at the same time. As defence counsel submitted, and TMF's counsel agreed, "the shareholders in both class actions deserve notices approved by the two courts which, read [page441] together, deliver a clear and cogent foundation of facts for [their] individual choice". [^20]

[51] In their most recent submissions, TMF and the defendants have taken a step back from their initial position that notice in these proceedings should await a certification decision in the U.S. Proceeding. Counsel for the defendants stated: "If the [Amending] Order is refused, then the U.S. Action settlement fails, and no notice will go out in that proceeding, while the notice in the Ontario Action will be simpler." ^21 In other words, if the U.S. Proceedings return to the earlier status quo, then notice in these proceedings would no longer have to await a certification decision in the U.S.

[52] Plaintiffs' counsel assert that notice should issue now and that any further delay would be prejudicial to the interests of the global class, including purchasers of IMAX stock on the TSX who are not members of the overlapping class. If the notice is issued now and an order is later made amending the class following the Amending Motion, a further notice could be issued apprising class members of the modification to the class definition and informing them that, if they purchased their shares on the NASDAQ, they can nonetheless remain in this action by opting out of the U.S. Proceedings. If the Amending Motion is ultimately denied, then the issuance of notice of certification in these proceedings would have been delayed further for no reason. B. Analysis and decision on notice issue (a) General principles re: Notice

[53] Section 17 of the CPA directs that notice of certification of a class proceeding be given by the representative party to the class members. The form of notice must be approved by the court: s. 20, CPA. The court is to make an order setting out when and by what means notice shall be given, having regard to the factors listed in s. 17(3). [^22] It is anticipated that notice of certification will be given promptly after certification, since s. 8(1)(f) of the CPA provides that an order certifying a proceeding as a class proceeding shall, among other things, specify the [page442] manner in which class members may opt out of the class proceeding and a date after which class members may not opt out.

[54] With respect to the content of the notice, s. 17(6) provides:

17(6) Notice under this section shall, unless the court orders otherwise, (a) describe the proceeding, including the names and addresses of the representative parties and the relief sought; (b) state the manner by which and time within which class members may opt out of the proceeding; (c) describe the possible financial consequences of the proceeding to class members; (d) summarize any agreements between representative parties and their solicitors respecting fees and disbursements; (e) describe any counterclaim being asserted by or against the class, including the relief sought in the counterclaim; (f) state that the judgment, whether favourable or not, will bind all class members who do not opt out of the proceeding; (g) describe the right of any class member to participate in the proceeding; (h) give an address to which class members may direct inquiries about the proceeding; and (i) give any other information the court considers appropriate. Accordingly, there are mandatory elements of the notice prescribed by the CPA, and the court may direct the notice to include "any other information the court considers appropriate".

[55] The principal function of notice is to preserve what has been described as the "litigation autonomy" of plaintiffs. As Perell J. observed in Berry v. Pulley (2011), 106 O.R. (3d) 123, [2011] O.J. No. 927, 2011 ONSC 1378 (S.C.J.), at para. 57:

. . . notice of the class proceeding and the right to opt-out are the means chosen by the Legislature to permit a putative class member to preserve his or her litigation autonomy during the communal stages of a class action. If the class member does not opt-out, he or she will be bound by the outcome of the class proceedings under the Class Proceedings Act, 1992.

[56] As Sharpe J.A. noted in Currie v. McDonald's Restaurants of Canada Ltd. (2005), 2005 3360 (ON CA), 74 O.R. (3d) 321, [2005] O.J. No. 506 (C.A.), at para. 28, "if the right to opt out is to be meaningful, the unnamed plaintiff must know about it and that, in turn, implicates the adequacy of the notice afforded the unnamed plaintiff". The Supreme Court stated in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, at para. 49:

A judgment is binding on a class member only if the class member is notified of the suit and is given an opportunity to exclude himself or herself from the [page443] proceeding . . . . [P]rudence suggests that all potential class members be informed of the existence of the suit, of the common issues that the suit seeks to resolve, and of the right of each class member to opt out, and that this be done before any decision is made that purports to prejudice or otherwise affect the interests of class members.

[57] Notice starts the clock running for the opt-out process and ensures the integrity of that process. [^23] Only after the period for opting out has expired will counsel for all parties know the size of the class, and be able to assess the economics of the case before undertaking expensive and time-consuming pre-trial and trial procedures. [^24]

[58] Unless there is sufficient notice, a judgment of a court in a class proceeding, whether in a contested proceeding or approving a settlement, will not be given preclusive effect in another jurisdiction. That is, unless there is proper notice, the judgment or settlement reached would be unenforceable against potential or actual claimants. [^25]

[59] The preclusive effect of a class proceeding judgment is determined by reference to the law and procedure in the jurisdiction which is invited to recognize and enforce the judgment. Preclusion was the issue in Currie, which involved an application to stay or dismiss class proceedings in Ontario on the basis that the class members' claims had already been determined by an Illinois judgment approving settlement of a class action, which purported to bind persons resident in Ontario. Enforcement of [page444] the Illinois judgment (and hence preclusion of the claims in the outstanding Ontario action) was refused on the basis that the non-resident class members had not received adequate notice. The wording of the notice was so technical and obscure that ordinary class members would have had difficulty understanding the implications of the proposed settlement on their legal rights in Canada or that they had the right to opt out. In addition, the mode of dissemination was inadequate. [^26]

[60] There are few authorities in our jurisdiction on what will constitute adequate notice. In the U.S., in dealing with class proceedings under federal jurisdiction, rule 23(c)(2) of the Federal Rules of Civil Procedure requires that notice "clearly and concisely state in plain, easily understood language" certain information about the case, such as the nature of the action and the claim, the time for requesting exclusion from the class and the binding effect of a class judgment. The notice must be clear, concise and easily understood. [^27] In the leading U.S. case with respect to due process in national class actions, the Supreme Court considered a similar state rule. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965 (1985), the court stated that, to bind an absent plaintiff, the notice "must be the best practicable, 'reasonably calculated under all the circumstances' to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections' . . . [t]he notice should describe the action and the plaintiff's rights in it". [^28]

[61] The content and timing of the notice of certification in this case must be informed by the general principles of advancing and supporting the integrity of the opt-out process and providing class members with sufficient information that is clear and not confusing to enable them to exercise the options that are available to them at the time that notice is given. (b) Substance of the notice -- Reference to parallel proceedings (i) Canadian authorities

[62] There are no reported cases that have considered the question of whether notice of certification in a Canadian jurisdiction [page445] must make reference to pending class proceedings in an international jurisdiction. There has been some consideration, however, of the question in the context of national class actions where there are parallel proceedings in other provinces. TMF relied on the decision of the Supreme Court in Canada Post v. Lépine, [2009] 1 S.C.R. 549, [2009] S.C.J. No. 16, 2009 SCC 16. In that case, the court addressed the issue of notice in multi-provincial class proceedings in the context of an attempt to give preclusive effect in Quebec to an Ontario class action settlement purporting to bind members of a national class.

[63] In Lépine, class proceedings were pending in Ontario, British Columbia and Quebec, but not yet certified in any jurisdiction. A settlement had been offered by the defendants to all applicants for certification, which had been accepted by the applicants for certification in Ontario and Alberta, but not in Quebec. During the time the application for certification in Quebec was under reserve, the Ontario application for certification was amended to include Quebec residents in the certified settlement class. The Quebec action was certified as a class proceeding. The defendant then applied to the Quebec court to have the Ontario judgment registered and declared enforceable so that class members who had not opted out of the Ontario proceedings would be precluded from participating in the Quebec class action. The lower courts refused recognition of the Ontario judgment, and this decision was upheld by the Supreme Court.

[64] While the case was decided applying certain provisions of the Civil Code of Quebec, S.Q. 1991, c. 64 concerning the recognition of foreign or external judgments, its reasoning is instructive. After concluding that the Ontario court had jurisdiction, the court found that the judgment could not be recognized because the notice to class members in the Ontario proceedings was deficient.

[65] LeBel J. observed that "[t]he wording of the notice must take account of the context in which it will be published and, in particular, the situation of the recipients", and that "it may be necessary to word the notice more precisely or provide more complete information to enable the members of the class to fully understand how the action affects their rights" (at para. 43).

[66] LeBel J. concluded that notice in the Ontario proceedings was deficient because it did not make reference to the parallel Quebec proceedings. He stated, at paras. 45 and 46:

The clarity of the notice to members was particularly important in a context in which, to the knowledge of all those involved, parallel class proceedings had been commenced in Québec and in Ontario. The notice published in Québec pursuant to the Ontario judgment did not take this particular circumstance into account. Those who prepared it did not concern themselves with the situation resulting from the existence of a parallel class proceeding [page446] in Québec and the publication of a notice pursuant to the Québec Superior Court's judgment authorizing the class action. The notice made it look like the Ontario proceeding was the only one[.]

In sum, the Ontario notice did not properly explain the impact of the judgment certifying the class proceeding on Québec members of the national class established by the Ontario Superior Court of Justice. It could have led those who read it in Québec to conclude that it simply did not concern them.

[67] Lépine involved a settlement that purported to settle and extinguish the claims in the parallel action. Class members resident in Quebec who were already part of a parallel class proceeding in that province needed to understand their rights where the failure to opt out would mean that the claims of the Quebec resident class members would be extinguished and they would be excluded from participating in the pending Quebec class proceedings. The notice they received was misleading in that Quebec class members had already received notice of certification in the Quebec proceedings and the failure to mention such proceedings may have led them to believe the Ontario notice did not concern them.

[68] Lépine suggests that parallel proceedings may need to be disclosed in a notice of certification, where the notice purports to preclude and extinguish claims that are pending in another jurisdiction (which occurs in any case where there the certification is for the purposes of settlement and the notice). In such cases, reference to the other proceedings may be necessary for class members to understand their options and, in particular, that the notice affects their interests. The case is not authority, however, that reference to parallel proceedings will always be required when notice of certification is given to the class, and certification is not for the purpose of settlement.

[69] TMF also relied on the decision of the Divisional Court in Mignacca v. Merck Frosst Canada Ltd. (2009), 2009 10059 (ON SCDC), 95 O.R. (3d) 269, [2009] O.J. No. 821 (Div. Ct.). In that case, the defendants opposed certification and sought to stay proceedings in Ontario on the grounds that a duplicative class proceeding had been certified in Saskatchewan. The court observed, at paras. 80 and 86:

We conclude that [the defendant corporation] identifies a problem, but exaggerates the consequences of two parallel proceedings. Potential plaintiffs would receive notices with respect to two actions. A mechanism would be found for plaintiffs to choose between the two outstanding actions, and proceed within the action of their choice. Apparently some 7000 potential plaintiffs have already contacted counsel in the Consortium. As Cullity J. observed, the presence of two overlapping multi-jurisdictional class proceedings is unfortunate, but the problems are solvable with cooperation, communication and direction from the courts. . . . . . [page447]

We conclude that there is no merit to the submissions made by Merck with respect to abuse of process. Admittedly, the existence of two multi-jurisdictional proceedings adds another layer of complication to already complex litigation. The problems however, are not insurmountable. I conclude that a greater abuse would be to allow and encourage forum shopping, and to require the Ontario plaintiffs to be required to pursue their actions in Saskatchewan, with the Merchant Group as their representatives.

[70] While Mignacca refers to the challenges of multijurisdictional class actions, it is not authority that a notice in one proceeding must make reference to, or defer to, proceedings in the other jurisdiction. Cullity J. refused to stay the Ontario action notwithstanding the certification of a parallel national class proceeding in another province, a decision upheld by the Divisional Court. [^29] Mignacca anticipates that, where there are parallel class proceedings in two provinces, there will be notices in both actions. In that case, the notice of certification of the Ontario proceedings did not refer to the fact that there was a certified national class action outstanding in Saskatchewan. [^30] (ii) ABA and CBA protocols

[71] The coordination of cross-border class proceedings was addressed in two protocols developed by the American Bar Association (the "ABA") [^31] which were approved as "best practices" and endorsed by the Canadian Bar Association (the "CBA"). [^32] The protocols would require all counsel to advise the court of any other class actions involving or arising out of (in whole or in part) the same claims or events as in the case before it of which [page448] they or their clients are aware. [^33] The "Notice Protocol: Coordinating Notice(s) to the Class(es) in Multijurisdictional Proceedings" anticipates that a long-form notice in respect of certification of a class proceeding will contain, among other things, a description of any other class actions of which counsel or their clients are aware involving, or arising out of (in whole or in part), the same claims or events as in the case before the court and in which an alleged or certified class' membership includes some or all of the members of the class in the case that is the subject of the notice . . . (referred to as a "Related Class Proceeding"). [^34] The Notice Protocol also cautions against notices becoming advocacy pieces or containing opinions regarding the likelihood of success of an action. [^35]

[72] The distinction between a notice of certification of a class proceeding and notice of a settlement is recognized in the protocols. Where notice is given in respect of a settlement, any Related Class Proceeding must be described, including any settlement of which counsel or their client(s) are aware. [^36] The protocols anticipate the coordination of approval and contents of a single notice to class members, but only where class proceedings have been commenced in more than one jurisdiction and a global settlement of all proceedings has been achieved. [^37]

[73] Other than to expect a notice to contain a "description of parallel class proceedings", the protocols do not address the specific question that is before this court. How much information about parallel class proceedings should be provided in a notice of certification, where the certification is not for the purpose of settlement? At what point in describing the parallel proceedings would the notice become confusing, thus defeating the purpose of the notice, or become "an advocacy piece"? (iii) Relevant U.S. law

[74] I turn now to consider the expert evidence on the question of whether, under applicable U.S. law, notice that a class [page449] proceeding has been certified would need to refer to parallel proceedings pending in another jurisdiction. I state at the outset that neither expert was aware of any reported case in the U.S. addressing directly the preclusive effect of a Canadian class proceeding on a U.S. Proceeding.

[75] The experts [^38] agree that there is no prohibition against overlapping class actions and there is no reason that overlapping class members (that is, the NASDAQ purchasers) could not be members of a certified class in both this action and the U.S. Proceedings. As Professor Borchers puts it, the "day of reckoning" arrives in overlapping class proceedings when a judgment or settlement is obtained in one of the class actions, which has a preclusive effect upon any other overlapping class proceedings.

[76] Professor Borchers is of the opinion that the proposed notice and dissemination plan meet U.S. due process requirements. He recommended certain improvements to the substance of the notice to comply with U.S. notice requirements that would make an Ontario judgment effective, as well as improvements to the dissemination plan (which have been adopted by the plaintiffs' counsel).

[77] Professor Borchers concluded that it is unnecessary for the notice to refer to the U.S. Proceedings in order for any judgment of this court to be recognized and given preclusive effect in the U.S. If and when the U.S. Proceeding is certified, the notice in that case should make reference to this proceeding, since that is the time when a class member would be called upon to make an election. (That is in fact what has occurred in the draft notice that has been preliminarily approved in the U.S. Proceedings, as discussed below.)

[78] Professor Borchers considered seven reported cases in the U.S. involving parallel proceedings in different states, where a party or non-party objector had claimed a due process or Federal Rules of Civil Procedure violation because a notice failed to mention parallel proceedings in another jurisdiction. Four of the [page450] cases were class proceedings, certified for settlement. [^39] One case involved a motion by a defendant to stay proceedings and a motion by plaintiffs for approval of class notice and a notice plan. [^40] Two cases were proposed settlements of derivative actions and involved notice that was required to be given to non-party shareholders. [^41] In each of these cases, the courts did not require the notice to disclose proceedings pending elsewhere or the relative merits of such proceedings. In one of the cases cited by Professor Borchers, Larson v. Sprint Nextel Corp., 2009 U.S. Dist. LEXIS 39298 (D.N.J.), the court noted, at p. 42: "No case or rule stands for the proposition that a nationwide class notice must identify any or every pending parallel state action. To be sure, that type of notice would more easily confuse than explain."

[79] According to Professor Borchers, it would be unwise to insert anything into the notice to class members in this action regarding the U.S. Proceedings, as it would be impossible to say anything helpful.

[80] Professor Miller's opinion is that notice in this case must disclose the U.S. Proceedings to comply with due process principles under the U.S. Constitution. Due process requires that absent class members receive the "best practicable" notice that is "fully descriptive" and sufficiently comprehensive so that jurisdiction is not simply obtained by inertia. According to Professor Miller, the existence of the U.S. Proceedings, and their overlap with this action, is perhaps the most pertinent fact in relation to NASDAQ purchasers, and its omission from the proposed notice of certification is fatal. He did not cite authority for this argument, other than general authority that notice must be "fully descriptive".

[81] Professor Miller attempted to distinguish the cases referred to by Professor Borchers on the basis that they involved derivative and not class actions or certification for settlement purposes, and hence a lower threshold for notice. The derivative [page451] actions, however, involved the question of notice to persons who had a right to object, although not a right to opt out of a settlement. As for the threshold for notice in class proceedings, the court in Larson explained that, while the Federal Rules of Civil Procedure provide a more stringent notice requirement for class certification and a more lenient standard for class settlement, "where a settlement class has been provisionally certified and a proposed settlement preliminarily approved, notice of both certification and settlement can be combined but must satisfy the heightened standard" (at pp. 7-8). Adequacy of notice was at issue in these cases. Professor Miller did not cite any contrary authority to the effect that notice would be deficient for failure to mention proceedings in another forum.

[82] Professor Miller stated that the notice should give the NASDAQ purchasers information enabling them to evaluate whether to stay in these proceedings or to "cast their lot" with the U.S. Proceedings. He suggested that the notice should meaningfully alert the NASDAQ purchasers to the factors pertinent to their choice, including (a) what law will be applied to claims if adjudicated in these proceedings; (b) if Canadian law is applied, what limitations or caps on damages apply, if any; (c) what impact, if any, would certification of the U.S. Proceedings have on this action; (d) what advantages or disadvantages might be present in establishing liability to NASDAQ purchasers under Canadian and U.S. law; (e) what attorneys' fees can class members expect to pay if they remain in this action, and what fees can they expect to pay if they are part of the U.S. Proceedings; (f) what are their rights under U.S. law if the class is certified and thereafter they wish to exclude themselves from a settlement; (g) what are the prospects that certification will be granted in the U.S. Proceedings; (h) if they do not opt out of this action, what will become of the remaining claims in the U.S. Proceedings -- for example, claims of plaintiffs whose purchases fall outside the class [page452] period in these proceedings or claims of plaintiffs against PriceWaterhouseCoopers LLP. [^42]

[83] I agree with Professor Borchers that a notice that attempted to set out this type of information would be confusing and ineffective. In any event, the "day of reckoning", that is, the time at which a choice will need to be made by class members, has not yet arrived. It will arrive, if the U.S. settlement proceeds, and notice is issued in those proceedings. That is why the U.S. notices will need to contain more fulsome information about the choices available to class members in order to permit them to consider the questions raised by Professor Miller, as well as other pertinent information. It would be unnecessary to communicate such information in these proceedings at this time.

[84] Professor Miller expresses a clear preference for the determination of the claims of the NASDAQ purchasers under U.S. law in the U.S. Proceedings, and the fear that such persons will lose the option of participating in the U.S. Proceedings if notice of certification is issued in these proceedings now, and without detailed reference to the U.S. Proceedings. He refers to the substantial interest of the U.S. court in adjudicating the claims of the NASDAQ purchasers because the action was filed first, the presiding judge has expended considerable time and effort in the case and has issued numerous rulings, and because the vast majority of the class members are U.S. citizens who purchased their stock on a U.S. exchange. Citing concerns about comity, Professor Miller asserts that distributing notice to NASDAQ purchasers in these proceedings at this juncture would undermine the ability of the U.S. judge to adjudicate their claims. Because they are unlikely to opt out, the NASDAQ purchasers may lose the ability to pursue their claims in the U.S. action to the extent the claims are adjudicated or released in this court.

[85] There are problems with Professor Miller's analysis. First, it has already been determined that this court has jurisdiction to proceed with a global class action, notwithstanding that a large majority of claims are those of persons who purchased their shares on a U.S. exchange. At this stage, it is uncertain what law will be applicable to such claims, but there may well be advantages to proceeding with such claims in this jurisdiction. Indeed, U.S. courts routinely adjudicate class actions involving foreign class members and, until Morrison, did so in securities class actions. The fact that one proceeding is [page453] commenced first does not give it priority, nor does the amount of time expended by counsel or a judge in such proceedings. Comity involves respect by one court of the decisions of another court and not deference to every step taken taken in another jurisdiction: Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, at para. 31. There is simply no basis for the statement that distributing notice to NASDAQ purchasers in these proceedings would "undermine the ability of the U.S. judge to adjudicate their claims".

[86] As Professor Miller notes, the NASDAQ purchasers would lose the ability to pursue their claims in the U.S. action if the claims are adjudicated or released in this court. They do not lose such ability simply by receiving notice of certification in this action. If fact, in light of what has recently transpired, with the proposed settlement in the U.S. Proceedings, the failure to opt out of these proceedings would simply preserve the class members' options. If the proposed U.S. settlement proceeds, the NASDAQ purchasers who do nothing in response to a notice in these proceedings will be able to participate in the settlement and will need to opt out of the U.S. settlement if they wish to remain as members of the class in these proceedings. (iv) The proposed notices in the U.S. Proceedings

[87] It is useful at this point to consider the two proposed notices that have been given preliminary approval in the U.S. Proceedings. It is not my function at this stage to evaluate the adequacy of notice, which may be argued in the Amending Motion, but simply to describe the terms of the notices, and to contrast the function of notice at this time in these proceedings with the notice proposed to be given in the U.S. Proceedings to inform class members of the certification and settlement.

[88] The U.S. notices make extensive reference to these proceedings and advise overlapping class members of how opting out of the U.S. settlement would affect their ongoing rights in these proceedings. The "summary notice" refers to these proceedings as the "Canadian Action" and the U.S. Proceedings as the "U.S. Action". The notice states in reference to these proceedings:

[I]n addition, if you purchased IMAX securities on or after February 17, 2006 and held some or all of those securities on August 9, 2006, then you are also a member of the certified class in another class action against IMAX Corporation and others, in Ontario, Canada (the "Canadian Action"). If you exclude yourself from the U.S. Action, you will remain a member of the class in the Canadian Action. If you do not exclude yourself from the U.S. Action, you cannot participate in the Canadian Action. [page454]

[89] The long-form notice, "Notice of Pendency and Proposed Settlement of U.S. Class Action", states in part:

If you purchased IMAX securities on the NASDAQ on or after February 17, 2006, and held some or all of those securities on August 9, 2006 (the "Canadian Class Period"), then you are a member of the certified class (the "Canadian Class") in another class action based on substantially similar allegations to those alleged in this case against the IMAX Defendants and others in Ontario Canada (the "Canadian Action" -- as described further below). You will not be permitted to recover in both cases and if you do not exclude yourself from the U.S. Action, you will automatically be deemed to be a member of the Class in the U.S. Action, and therefore excluded from the Canadian Class in the Canadian Action. For members of the Canadian Class, a detailed description of the Canadian Action as well as details regarding how to exclude yourself from this action (and thereby participate in the Canadian Action) are contained below.

[90] The long-form notice goes on to provide information about these proceedings and states in part:

There are differences between the U.S. Action and the Canadian Action. For example, while the Class Period in the U.S. Action runs from February 27, 2003, through July 20, 2007 (more than four years) the class period in the Canadian Action runs from February 17, 2007, through August 9, 2006 (less than six months). The U.S. Action includes PwC- Canada as a defendant, but the Canadian Action does not. The Canadian Action includes four Directors of IMAX (Neil S. Braun, Kenneth G. Copland, Garth M. Girvan and David W. Leebron) who are not Defendants in the U.S. Action. The U.S. Action seeks relief for violations of the U.S. securities laws. The Canadian Action asserts claims under the Canadian securities laws.

[91] The notice in the U.S. Proceedings directs class members with questions about the Canadian Action to class counsel in these proceedings, [^43] and states that a class member who fails to exclude himself from the settlement will be precluded from bringing a claim, including participating in these proceedings.

[92] Because overlapping class members will be faced with a decision that could preclude their continued participation in these proceedings, it makes sense that the U.S. notices contain information that is useful for a class member to make an election. As in the Lépine case, when the failure to opt out would purport to bind a class member to a settlement that will extinguish his or her rights, that context may require information as to how the settlement directly affects those rights. [page455]

[93] The fact that the approved U.S. notices reference these proceedings in significant detail does not, however, demand that a notice in these proceedings should contain similar information. The U.S. notices will inform class members about their options when they are notified of both the certification and settlement. It may be necessary to provide such information at the time an election is required. To provide similar information in these proceedings, at this stage, would appear to invite an election between the parallel proceedings when no such election is required. (v) Conclusion re: Content of the notice

[94] Returning to first principles, the content of any notice must be informed by its purpose. The purpose of notice at this stage in these proceedings is to inform class members that the proceedings have been certified as a class action, to tell them what the action is about and to permit class members to act on such notice, by taking such steps as they should be afforded to preserve their "litigation autonomy".

[95] At this stage in the Ontario proceedings, there is no need for a class member elect between participation in these proceedings and participation in the U.S. Proceedings. As both experts agreed, there is no impediment to overlap class members belonging to the classes in both proceedings at least until one action reaches judgment. The only decision required of class members at this stage is whether to opt out of these proceedings. The failure to opt out of these proceedings will not have any impact on the class members' ability to participate in the U.S. Proceedings or indeed to participate in the U.S. settlement if and when it is approved. As Professor Borchers observed, and as we have seen in the proposed notices in the U.S. Proceedings, if and when the U.S. settlement is approved, class members will receive notice that will make clear that "the day of reckoning" has arrived, information that may be pertinent to their choice, including contact information for counsel in both actions, and that the failure to opt out will preclude their claims, including claims in these proceedings.

[96] At this stage, the overlapping class members have not received any notice in the U.S. Proceedings, although they may be aware of the existence of such proceedings. Because there is another class proceeding pending, which may in the future affect overlapping class members' interests, and in which they may receive notices, the notice issued in these proceedings should inform class of the existence of the U.S. Proceedings. In order to ensure that there is no confusion, they should be specifically advised that it is unnecessary for a class member to opt out of the Ontario proceedings in order to participate in the U.S. Proceedings. [page456]

[97] The notice should direct class members to a source of information about the other proceedings, but it should not attempt to summarize the status or evaluate the merits of the U.S. Proceedings. Any notice that purported to contain detailed information about the U.S. Proceedings or that compared the two proceedings would be confusing. Even experienced counsel would find it impossible to predict the forum in which the NASDAQ purchasers would likely be more successful. [^44] In any event, such information is entirely unnecessary and would not assist overlap class members in making the only decision they need to make at this time -- whether to opt out or remain members of both classes. (c) Timing of the notice

[98] TMF and the defendants suggested that some type of coordinated notice should go out in this action and the U.S. Proceedings in the event that the U.S. settlement is finalized. That may well occur in the future; however, it should not prevent the notice of certification from going out at this stage in these proceedings, where this is sought by class counsel. There is at this time no coordination of the proceedings in the two jurisdictions and, in any event, this court can only control the proceedings in its own jurisdiction.

[99] As already observed, notice of certification of a class proceeding should ordinarily be given to class members as soon as practicable, following certification. Upon certification, the TSX purchasers and the NASDAQ purchasers became class members and, accordingly, participants in these proceedings, unless or until they opt out. Delay in notice to class members is inconsistent with the need to protect their procedural rights and respect for their "litigation autonomy".

[100] TMF and the defendants propose that no notice be issued in these proceedings until notice is given in the U.S. Proceedings. According to the Preliminary Order, notice will be issued in the U.S. Proceedings within 75 days after an order has been made by this court amending the class. If this court were to wait for anticipated developments in the U.S. Proceedings, the first notice that would be received by any class member of the [page457] certification of these proceedings (including TSX purchasers) would be in several months or possibly years, depending on how protracted the U.S. Proceedings become.

[101] While it may well be desirable to streamline the notice process and if possible avoid duplication, there is no certainty that the proposed U.S. settlement will be approved, and it is reasonable to conclude that there will be additional lengthy delays before all of the steps required to bring such a settlement to fruition can be concluded. One step involves a novel motion to this court that may be the subject of appeal. The fairness hearing in the U.S. may or may not approve the settlement, and any order made in that hearing may be appealed. If any of the conditions in the U.S. settlement fail, the U.S. Proceedings will return to their pre-November 2011 status, that is, an action not yet certified as a class proceeding.

[102] TMF and the defendants argue that no prejudice will result to the plaintiffs in that this litigation can still proceed, even without notice to the class. A statement of defence has been delivered recently and the parties are progressing slowly with production of documents. TMF and the defendants argue that requiring notice at this stage would result in additional cost (when further notice to the class will be required if an amending order is made) and confusion.

[103] There was no evidence before the court as to the cost of the notice program in these proceedings (which on consent will be shared equally between the plaintiffs and defendants) and there is, in any event, no current mechanism for a joint notice so that duplication of costs would necessarily be avoided. The timing of the notice does not depend on balancing potential prejudice to each side in the litigation. There is an expectation that notice of certification will be given promptly; under an opt-out system, members of the class are part of the litigation after certification, unless they opt out. Until they have notice and an opportunity to opt out, they are bound to a proceeding they may not even know about, with no method to remove themselves. It would be inconsistent with the principles of order and fairness for members of the global class that was certified by this court in December 2009 to receive no notice at all while these matters are pending, or to tie the timing to steps taken in another jurisdiction, over which this court has no control. As the Supreme Court observed in the Western Canadian Shopping Centres case, at para. 49, "prudence suggests that all potential class members be informed . . . before any decision is made that purports to prejudice or otherwise affect [their] interests . . .". [page458]

[104] Accordingly, notice shall be published on or before May 1, 2012 in the terms of the first version of the draft notice that was provided by plaintiffs' counsel on February 1, 2012, as amended by me, a copy of which accompanies these reasons. The draft notice does not provide for an opt-out date. The opt- out period will be 90 days after publication of the notice of certification. The notice program will otherwise proceed in accordance with the terms of the amended litigation plan, previously approved, including the requirement that the plaintiffs and defendants each pay one-half of the costs of the notice program and the costs of Howie & Partners LLP, except that the distribution of notice shall be expanded in the terms recommended, at para. 17 of Professor Borchers' Affidavit of May 31, 2011.

[105] The press release required under s. 138.9(1)(a) of the Securities Act shall be issued on May 1, 2012 and disseminated in accordance with para. 17(a) of the amended litigation plan.

[106] Should counsel be unable to agree on costs of these motions, I will receive written submissions as follows: the plaintiffs' submissions within 30 days, submissions of TMF and the defendants within 20 days of receipt of the plaintiffs' submissions, and reply submissions, if any, within ten days of receipt of the responding submissions.

Motion granted.

Notes

[^1]: Silver v. IMAX Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585, 86 C.P.C. (6th) 273 (S.C.J.).

[^2]: The "Excluded Persons" are IMAX's subsidiaries, affiliates, officers, directors, senior employees, legal representatives, heirs, predecessors, successors and assigns and any member of the defendants' families and any entity in which any of them has or had during the class period any legal or de facto controlling interest.

[^3]: The notice contained in the motion record for the motion returnable May 3, 2011 is approved, except that the words "The defendants deny that the claims have merit" are substituted for the words "The merits of these allegations have not been decided."

[^4]: Silver v. IMAX Corp. (2011), 105 O.R. (3d) 212, [2011] O.J. No. 656, 2011 ONSC 1035 (Div. Ct.).

[^5]: The plaintiffs sought to change the content of the notice previously approved by the court to correct the reference to the fees to be paid to class counsel, as the retainer agreements signed by the representative plaintiffs Silver and Cohen contained different terms. The reference to class counsel being paid "a legal fee of up to 33 percent plus disbursements, plus GST" is not at issue.

[^6]: The notice of motion sought to fix the date for publication of the notice of certification as June 30, 2011 and sought to fix the final date for the receipt of opt-out forms by Howie & Partners LLP as September 28, 2011, with the plaintiffs and defendants each paying 50 per cent of the costs of the notice program. The notice of motion also sought approval of the form of the news release required pursuant to s. 138.9(1)(a) of the Securities Act.

[^7]: The expert evidence consisted of the following affidavits: Affidavit of Patrick J. Borchers sworn May 31, 2011 ("Professor Borchers' First Affidavit"), Affidavit of Professor Geoffrey P. Miller ("Professor Miller's First Affidavit"), Supplemental Affidavit of Patrick J. Borchers sworn June 21, 2011 ("Professor Borchers' Second Affidavit") and Supplemental Affidavit of Professor Geoffrey P. Miller sworn June 24, 2011 ("Professor Miller's Second Affidavit").

[^8]: Proceedings in the United States District Court, Southern District of New York in which the court certified a global class of purchasers of Vivendi securities in respect of claims against a French corporation and its two most senior former officers: In re Vivendi Universal, S.A. Securities Litigation, 242 F.R.D. 76. (S.D.N.Y. 2007).

[^9]: Supra, note 1, endnote 4.

[^10]: Morrison v. National Australian Bank Ltd., 130 S. Ct. 2869, 177 L. Ed. 2d 535 (2010).

[^11]: The notice program which has received preliminary approval in the U.S. provides for publication in various Canadian newspapers of a summary notice in order to reach Canadian citizens who purchased IMAX shares on the NASDAQ.

[^12]: In re IMAX Securities Litigation, 272 F.R.D. 138 (S.D.N.Y. 2010). Buchwald J., after having previously determined Snow Capital to be the most suitable lead plaintiff, found, at p. 155 F.R.D., that "Snow Capital cannot establish loss causation ù and, at a minimum, is subject to unique defences which may threaten to become the focus of the litigation (and which would not be the focus of the litigation for class members who either purchased shares after February 17, 2006, or who purchased prior to February 17, 2006 and held through a subsequent alleged corrective disclosure)".

[^13]: In re IMAX Securities Litigation, 2011 U.S. Dist. LEXIS 41709 (S.D.N.Y.).

[^14]: The stipulation filed in the U.S. proceedings seeking preliminary approval of the settlement asserts that settlement negotiations took place between April 2011 and November 2011.

[^15]: See, for example, Frohlinger v. Nortel Networks Corp., 2007 696 (ON SC), [2007] O.J. No. 148, 40 C.P.C. (6th) 62 (S.C.J.) (approval of a settlement of two related class proceedings involving Nortel Networks Corporation, where similar motions were brought in the U.S. and in B.C. and Quebec for approval of a settlement that was a proposed global resolution aimed at concluding all outstanding litigation in Canada and the U.S.); Canadian Commercial Workers Industry Pension Plan v. Royal Group Technologies Ltd., [2007] O.J. No. 3686, 160 A.C.W.S. (3d) 593 (S.C.J.) involving global settlement of all claims; Metzler Investment GmbH v. Gildan Activewear Inc., [2011] O.J. No. 885, 2011 ONSC 1146 (S.C.J.) (approval of a settlement affecting the Ontario class, as part of settlement including resolution of proceedings in Ontario, Quebec and the U.S.); and O'Neil v. SunOpta, Inc., [2010] O.J. No. 5251, 2010 ONSC 2735 (S.C.J.) (where the Ontario court approved a settlement of securities class actions commenced in the U.S. and Ontario).

[^16]: The stipulation notes: "In the absence of a settlement demand from Canadian lead counsel on substantially the same terms as the Settlement which provides substantially the same compensation for those members of the Canadian Class who do not participate in the Settlement, the IMAX Defendants have expressed their intention to continue to vigorously defend the Canadian Action up through to trial."

[^17]: This is a brief summary only of some of the terms of the Preliminary Order.

[^18]: Para. 9 of the certification order provides that the class members shall be given notice of the certification of this action on a date to be fixed by further order of this court, generally in accordance with the notice program particularized in para. 17 of the amended litigation plan.

[^19]: There were some concerns about the scheme of distribution that have been addressed by the plaintiffs. See Professor Borchers' First Affidavit, para. 17.

[^20]: Letter from D. Peebles, McCarthy Tétrault, dated February 6, 2012.

[^22]: The factors are (a) the cost of giving notice; (b) the nature of the relief sought; (c) the size of the individual claims of the class members; (d) the number of class members; (e) the places of residence of class members; and (f) any other relevant matter.

[^23]: See C. Jones and A. Baxter in "Fumbling Toward Efficacy: Interjurisdictional Class Actions After Currie v. McDonald's" (2006), 3 Can. Class Action Rev. 405, at p. 433, where the authors suggest that:

A better view may be that the main purpose of notice in class actions is not to survey the class looking for opt-outs in the interest of preserving class members' right to a "day in court". Rather, notice to plaintiffs is a means of sampling the class to double-check the appropriateness of the decision to certify or settle. Notice helps to ensure adequacy of representation and reduce some of the inevitable agency problems between plaintiffs' counsel and the class, or as in Currie, between the representative plaintiff and a group within the class with different interests.

[^24]: 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 6199 (ON SC), 62 O.R. (3d) 535, [2002] O.J. No. 4781 (S.C.J.), at para. 76, affd (2004), 2004 16620 (ON SCDC), 70 O.R. (3d) 182, [2004] O.J. No. 865 (Div. Ct.).

[^25]: Enforcement and recognition of a foreign judgment involves, first, that the original court had jurisdiction and then that there is no bar to enforcement. In the class actions context, this involves a consideration of procedural protections accorded to class members, such as adequate representation and notice: Currie v. McDonald's Restaurants of Canada Ltd., supra ("Currie").

[^26]: Currie, paras. 39 and 40.

[^27]: Professor Borchers' Second Affidavit, at para. 3.

[^28]: Phillips Petroleum Co. v. Shutts, 472 U.S. 797, supra (1985), at pp. 811 and 812 U.S.

[^29]: Residents of Saskatchewan were excluded from the class to reflect the practice of the court to defer to the jurisdiction of another Canadian court over its own residents: Tiboni v. Merck Frosst Canda Ltd., 2008 37911 (ON SC), [2008] O.J. No. 2996, 295 D.L.R. (4th) 32 (S.C.J.), at para. 66.

[^30]: See http://www.merchantlaw.com/classactions/vioxx.php referred to in the factum of the class, at para. 78.

[^31]: "Protocol on Court-to-Court Communications in CanadaûU.S. Cross-Border Class Actions" (the "Communications Protocol") and "Notice Protocol: Coordinating Notice(s) to the Class(es) in Multijurisdictional Proceedings" (the "Notice Protocol").

[^32]: CBA council passed a resolution in August 2011 approving a "Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions" (the "CBA Protocol") and endorsing the two ABA protocols. It is the intention of the CBA to urge Canadian courts that administer class actions to adopt the CBA Protocol. The CBA Protocol deals primarily with communications between counsel and the court in situations where there is a joint settlement of inter-jurisdictional actions.

[^33]: Communications Protocol, s. 2.

[^34]: Notice Protocol, s. 5(b).

[^35]: Notice Protocol, s. 3. The consultation paper released by the CBA in June 2011 cites the Supreme Court of Canada decision in Lépine in connection with this requirement. "Those who prepared it did not concern themselves with the situation resulting from the existence of a parallel proceeding."

[^36]: Notice Protocol, s. 7(c).

[^37]: Notice Protocol, s. 8.

[^38]: Professor Borchers is an expert in conflicts of laws, including judgment recognition. He previously served as an expert witness in another case involving parallel U.S. and Ontario securities class actions, Abdula v. Canadian Solar Inc., [2011] O.J. No. 4067, 2011 ONSC 5105 (S.C.J.). His qualifications are set out in full at Exhibit "A" to Professor Borchers' First Affidavit. Professor Miller is an expert on class actions, and has been qualified as an expert and testified frequently in state and federal courts. One of his major areas of research is what he describes as "duelling class actions". His qualifications are set out in full at Appendix "A" to Professor Miller's First Affidavit.

[^39]: In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981), cert. denied 456 U.S. 998, 102 S. Ct. 2283 (1982); Larson v. Sprint Nextel Corp., supra; Hall v. Midland Group, 2000 U.S. Dist. LEXIS 16751 (E.D. Pa.), affd, 275 F.3d 35 (3rd Cir. 2001); In re Prudential Insurance Co. of America Sales Practices Litigation, 962 F. Supp. 450 (D.N.J. 1997), at 529 F. Supp., revd on other grounds, 133 F. 3d 225 (3rd Cir. 1998).

[^40]: Campbell v. PriceWaterhouseCoopers, LLP, 2008 U.S. Dist. LEXIS 44795 (E.D. Cal.), at p. 4.

[^41]: Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3rd Cir. 1993) and Maher v. Zapata Corp., 714 F.2d. 436 (5th Cir. 1983).

[^42]: Professor Miller's Second Affidavit, para. 31.

[^43]: The notice that has been given preliminary approval in the U.S. Proceedings directs questions initially to U.S. class counsel; however, the parties have agreed to advise Judge Buchwald of agreed changes to meet the concerns of class counsel in these proceedings, including direction in the first instance to their firm if there are questions about the Canadian Action, and prominent display of their contact information.

[^44]: In their factum, counsel for TMF highlight the advantages of the U.S. jury system, the cap on damages in statutory claims under the Ontario law, the additional defendants in the U.S. Proceedings and other aspects, while plaintiff's counsel assert in their factum the benefits of the Ontario statutory cause of action, that this action is already certified, the more favourable approach to loss causation and other advantages.