Whither Common Law Claims for Secondary Market Misrepresentation?: An Analysis of Certification Decisions in McCann V CP Ships, Silver V Imax, Mckenna V Gammon Gold, and Dobbie V Arctic Glacier

Part XXIII.1 of the Ontario Securities Act provides a statutory right of action for misrepresentations or omissions affecting the price of securities on the secondary market. Recent decisions have reached starkly contradictory conclusions to the question of whether common law misrepresentation claims — meaning claims that do not rely on the statutory right of action — may also be certified along with misrepresentation claims commenced pursuant to Part XXIII.1. These decisions provoke a reflection on the original reasons for the adoption of Part XXIII.1 and raise important questions about the past and future of the common law misrepresentation claims that Part XXIII.1 was intended to supplement, if not entirely supersede. The authors contend that Strathy J’s reasons for declining certification of the common law misrepresentation claims in McKenna v Gammon Gold are consistent with Canadian jurisprudence before the enactment of Part XXIII.1 and should be preferred to the reasoning in Silver v IMAX, McCann v CP Ships and Dobbie v Arctic Glacier.