Statements Of Defence Required In Advance Of Certification In Sino-Forest Class Proceeding

In the recent Trustees of the Labourers' Pension Fund et al. v. Sino-Forest decision – released March 26, 2012 – Justice Perell affirmed his earlier reasoning in Pennyfeather v. Timminco¹ by requiring the delivery of statements of defence before the certification hearing. Perell J. also ordered that the certification hearing be held together with the plaintiffs' motion for leave to advance statutory secondary market claims under Part XXIII.1 of the Ontario Securities Act. Justice Perell observed that the delivery of statements of defence may not always be appropriate in advance of certification – particularly in the context of proposed class proceedings involving claims for secondary market misrepresentations under the Securities Act. Nonetheless, defendants in Ontario must now anticipate the very real possibility that statements of defence will be required before the issues are narrowed at the certification hearing.