Regulatory Settlement Will Not Prevent Class Action: SCC Certifies Fischer

On December 12, 2013, the Supreme Court of Canada released its much anticipated decision in AIC Limited v. Fischer, 2013 SCC 69. The Court unanimously held that a restitution payment in settlement of regulatory proceedings does not preclude certification of a class action on behalf of the same investors who received compensation through the regulatory process.

Fischer is an important decision for companies, their counsel and the class action bar. First, the Court confirmed that defendant companies may not be able to use regulatory proceedings to defeat a proposed class action on the basis that the regulatory proceedings are the preferable procedure. Second, the Court provided guidance on the preferability analysis at certification and set out a framework for the "access to justice" component of that analysis. Third, the Court reaffirmed that the evidentiary threshold at the certification stage is low.