The Case Continues: Wright v Horizons And The Draft Capital Markets Act

In an earlier publication, "Beware of a Potential New Duty of Care for Investment Fund Managers – Six Takeaways from Wright v Horizons", we discussed the Ontario Court of Appeal's (the "ONCA") decision in Wright v Horizons ETFS Management (Canada) Inc. ("Horizons") in which the court opened the door to a potentially new common law duty of care for investment fund managers and flagged the practical challenge in identifying the character of units of exchange-traded funds ("ETFs"). There have been new developments since the ONCA decision, certain of which are summarized in this bulletin:

1. In subsequent proceedings, the Ontario Superior Court of Justice (the "ONSC") confirmed that neither of the statutory civil liability routes under the Securities Act (Ontario) ("OSA") is available, in any practical sense, to investors in ETF units in the context of class action proceedings, leaving the ability for ETF purchasers to bring statutory civil liability claims under the