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ARTICLE · 12 JUNE 2023

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A Material Change In "Material Change"?

Fogler, Rubinoff LLP
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Reporting issuers in Ontario may need to be more vigilant in deciding when to issue a press release to comply with their continuous disclosure obligations under the Ontario Securities Act.

CanadaFinance and Banking
Rick Moscone
Rick Moscone
Ronald D. Davis
Ronald D. Davis
Cameron Holliday
Cameron Holliday
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Reporting issuers in Ontario may need to be more vigilant in deciding when to issue a press release to comply with their continuous disclosure obligations under the Ontario Securities Act. This is the conclusion we draw from last month's decision of the Court of Appeal for Ontario in Markowich v. Lundin Mining Corporation, 2023 ONCA 359. (The Court released a companion decision the same day, Peters v. SNC-Lavalin Group Inc., 2023 ONCA 360, that follows the reasoning in Lundin.)

Section 75(1) of the Securities Act requires a reporting issuer to issue and file a news release forthwith "where a material change occurs in [the issuer's] affairs".

According to the Supreme Court of Canada's decision in Kerr v. Danier Leather Inc., 2007 SCC 44, whether there has been a material change requires a two-step analysis:

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