Steven Frankel

The plaintiff pension fund sought leave under s. 138.8 of the Securities Act to commence a $3 billion secondary market securities class action against the defendant mining company.

The plaintiff alleged misrepresentations in three categories: capital expenditure and scheduling, environmental compliance, and accounting and financial reporting.

The court dismissed the motion for leave regarding the capital expenditure and accounting allegations, finding that the plaintiff failed to satisfy the public correction requirement.

However, the court granted leave to proceed with one core environmental allegation, finding a reasonable possibility that the plaintiff could establish at trial that the defendant's July 26, 2012 representation about the completion of a water management system was an untrue statement of material fact.

The plaintiffs brought a motion to issue a commission and letter of request to judicial authorities in the State of Washington to compel the former owner of the defendant hockey club, an American resident, to give evidence at trial.

The court found the witness had material evidence regarding corporate negligence and vicarious liability for an on-ice assault.

Finding a gap in the rules regarding compelling foreign witnesses to testify via videoconference at trial, the court applied the rules by analogy and granted the order for a commission and letter of request for the witness to testify live by videoconference or be examined before trial.