Common Law Securities Misrepresentation Claims — Still With us in the Post-Green Era?

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. Recently, the Supreme Court of Canada released its decision in CIBC v Green, wherein it considered whether common law securities misrepresentation claims may be certified alongside misrepresentation claims commenced pursuant to Part XXIII.1. While the Supreme Court decision in Green indicates that certain common issues relating to common law misrepresentation claims may be certified in conjunction with a Part XXIII.1 claim, it does not suggest that this will be appropriate in all cases. The Green decision raises the question as to what meaningful benefit class members will obtain from this practice. The certification of some but not all common issues relating to common law misrepresentation claims is unlikely to meaningfully advance the resolution of such claims when issues relating to reliance and damages must be dealt with by way of individual trials. In light of these and other complex issues that were not addressed in Green, one may expect further commentary on the issue of parallel common law claims by appellate courts.