On November 5, 2013, Justice Perell released his decision in Bayens v. Kinross Gold Corp. denying
leave to commence a statutory misrepresentation claim under Part
XXIII.1 of the Ontario Securities Act (the "OSA")
and holding that as a result of the failure to obtain leave for
their statutory claim, the plaintiffs' putative class
proceeding could not satisfy the criteria for certification of a
class action, including with respect to the common law claim for
negligent misrepresentation.
Background
In Bayens, several Trustees of the Musicians'
Pension Fund of Canada ("Musicians") commenced a
secondary market misrepresentation claim against Kinross Gold
Corporation, a Canadian international mining company, and several
current and former officers and directors of Kinross. The proposed
class action was brought on behalf of purchasers of Kinross shares
from May 3, 2011 to January 16, 2011 and related to Kinross'
purchase, in September 2010, of Red Back Mining Inc., which
