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Considering Notice in the Unusual Circumstances of Silver v. IMAX

2 minute read

In Silver v. IMAX, 2012 ONSC 1047, a global class action was certified with respect to those individuals who purchased IMAX securities on the TSX or NASDAQ between February 17, 2006 and August 9, 2006. A similar class action in the US was restricted to individuals that had purchased IMAX securities on the NASDAQ and had a longer class period.

The US lead plaintiff sought to intervene in the Canadian proceedings with respect to the content and timing of the notice of certification. Following the initial argument of the motion, the parties to the US class action reached a proposed settlement. Ultimately, the US lead plaintiff and the Canadian defendants argued in part that, ideally, overlapping class members should be given a fully informative notice to permit them to choose between the US and the Canadian proceeding.

Justice K. van Rensburg considered the question of how much information should be provided in a notice of certification about a parallel class proceeding, where the certification is not for the purpose of settlement.

In the unusual circumstances of this case, where settlement was only proposed and only in the US, Justice K. van Rensburg held:

  1. that at this stage, class members only needed to decide whether to opt out of the Canadian proceeding. Whether they opted out of the Canadian proceeding would have no impact on their ability to participate in the US proceeding;
  2. as the US proceeding was pending and it may, in the future, affect the overlapping class members' interests, the Ontario notice should inform class members of the existence of the US proceedings. In order to avoid confusion, class members should be specifically advised that it is unnecessary for a class member to opt out of the Ontario proceedings in order to participate in the US proceedings; and
  3. the notice should only direct class members to a source of information about the other proceeding and should not attempt to summarize the status or evaluate the merits of the US proceeding.

The content contained in these blogs is intended to provide information about the subject matter and is not intended as legal advice. If you would like further information or advice on any of the subjects discussed in a blog post, please contact the author.

Jason Squire

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