Round And Round We Go: BCCA Declines Opportunity To Shape Leave Test In Secondary Market Class Actions

In a decision released this month, the British Columbia Court of Appeal has declined to enter the national fray on the question of how courts should interpret statutory leave requirements adopted throughout Canada in recent securities legislation amendments.  These leave requirements impose a preliminary hurdle for plaintiffs seeking to advance statutory secondary market class action claims, requiring them to demonstrate a reasonable possibility of success at trial.  Thus far, no appellate court in Canada has yet pronounced on how courts should apply this standard.  In Round v. MacDonald, the motions judge suggested that the appropriate standard in British Columbia is higher than the one articulated thus far in Ontario.  The appeal of that decision gave the British Columbia Court of Appeal an opportunity to consider that standard, which it declined to do.