Test For Leave To Bring Secondary Market Securities Class Action Is Not A "Low Bar"

The recent decision in Bradley v. Eastern Platinum Ltd.¹ saw the Superior Court of Justice reaffirm the position that the test for statutory leave to bring a secondary market securities class action "is not a low bar."² Justice Rady, citing the decisions of the Supreme Court of Canada in CIBC v. Green³, and Theratechnologies⁴, refused to grant leave as the claim brought by the plaintiff had no reasonable chance of success at trial. A plaintiff must put forth "both a plausible analysis of the applicable legislative provisions, and credible evidence in support of the claim"⁵; this proved to be an impossibility for the plaintiff, given the evidence led by the defendant.

Where the facts are contentious, as was the case here, the amount and quality of material submitted by the parties will be determinative of whether the motion will fail or succeed. It seems that such situations provide a real opportunity for a defendant to stop a class action before it begins, given