In another installment of the tortured history of the Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., Justice Perell has refused to certify the action as a class proceeding on the basis of a common law misrepresentation claim.
This case was recently part of the trilogy of cases heard by the Supreme Court of Canada, along with Green v. CIBC and Silver v. IMAX, where the Court held that a claim under the statutory cause of action in the Securities Act for secondary market misrepresentation must have obtained leave to proceed prior to the expiry of the two year limitation in the Securities Act (to which discoverability does not apply). In that decision, the Supreme Court held the claim in Celestica was statute barred.
This recent decision deals with the plaintiffs' remaining common law misrepresentation claim. Justice Perell held that he had previously decided (in the decision that was appealed to the Supreme Court in the trilogy) that a class proceeding was not the preferable procedure for a common law misrepresentation claim, and thus the matter was res judicata. However, Justice Perell found it was open to the plaintiffs to move under section 7 of the Class Proceedings Act, 1992 to order the addition of parties and created a joined claim for common law misrepresentation.
This case is notable because it eliminates defendants' exposure to class actions based on common law misrepresentation for secondary market misrepresentations, and focuses such class actions on the statutory cause of action, which has a more defendant-friendly limitation period.