Laura Cooper, a partner at Fasken Martineau DuMoulin LLP in Toronto, describes the recent SCC decisions as “promising” for the defence side of securities-based class actions. “It is very important that the market is not overwhelmed by cases that should not go forward,” she says. “I think it is often going to be difficult to defeat leave, but I believe we will see it [the test] refined through subsequent decisions,” says Cooper, who is co-chairwoman of the firm’s Class Actions Practice Group.
“There is a lot of work to be done upfront. You have to do a very early merits-based investigation,” says Cooper, who expects plaintiffs to be making the same efforts before a leave hearing.
Another option, says Cooper, is to concede certification, yet only on certain issues. “There could be a negotiated order to put forward a smaller case, to try to reduce the exposure or the damage. I do not think this is going to be the normal course of action,” Cooper says.