Mi Casa Es Su Casa: Van Breda as the House Rule for Global Securities Class Actions in Ontario

Since enacting Part XXIII.1 of its Securities Act nearly a decade ago, Ontario has become a hotspot for shareholder classes seeking damages for misrepresentations made in the secondary securities market. While US courts have all but closed their doors to securities class actions with prominent foreign aspects, Ontario courts have continued to widen theirs, as Kaynes v BP set the threshold for finding a real and substantial connection to the adjudicative forum at an all-time low. Prior academic commentary has proposed that Ontario courts invoke the test for jurisdiction set out in Club Resorts Ltd v Van Breda, but there remains lively debate as to which connections are sufficiently real and substantial to ground jurisdiction over a secondary market misrepresentation class action with significant cross-border elements. In contributing to this discourse, this paper comprises the first comprehensive quantitative assessment of the jurisdictional determinations made in Ontario class actions involving statutory claims for secondary market misrepresentation. The author found that although no bright-line test or consistent analytical framework for assuming jurisdiction emerged in the jurisprudence, Ontario courts have tended to rely more heavily on certain connecting factors than others. Moreover, each of these favoured factors maps onto one of Van Breda’s four presumptive connecting factors, and so Van Breda has the potential to add much-needed form to the substance of the jurisdictional precedent that has developed in Ontario. Moreover, implementation of the Van Breda framework as tailored to the securities class action context would optimally balance protection of global shareholders with preservation of comity and fairness to issuers.