Victory for Access to Justice in Supreme Court of Canada “Market Timing” Decision
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Victory For Access To Justice In Supreme Court Of Canada “Market Timing” Decision

TORONTO – December 17, 2013 – In a major win for access to justice, the Supreme Court of Canada has upheld a decision to certify the “market timing” class action (Fischer v CI Mutual Funds).

The decision gives a green light to class actions even where a parallel regulatory proceeding has generated some compensation, if that proceeding did not provide sufficient access to justice. The decision will have broad implications for many areas of class actions.

Peter Jervis of ROCHON | GENOVA LLP, the law firm representing the investors, said “the decision emphasizes the important role that class actions play in providing access to justice for aggrieved investors. The Supreme Court found that class actions provide not only a fair and accessible procedure to investors to pursue their claims against institutions, but also in ensuring that investors can achieve substantial recovery of losses caused by those institutions.”

“The Supreme Court put its money where its mouth is and made access to justice both accessible and just,” said Allan Hutchinson, who also represented the investors at the Supreme Court.

The decision is great news for plaintiffs in class-action lawsuits, and means that corporations can no longer shelter behind a regulatory investigation into their conduct. The decision shows that the goal of access to justice is receiving increased attention at the Supreme Court of Canada, and that parallel procedures where access to justice is lacking will not prevent class actions plaintiffs from getting their day in court.

The Supreme Court stated that, “[a]ccess to justice is an important goal of class proceedings”. It found that the regulatory proceeding before the OSC had not provided access to justice to the investors, either procedurally, because the investors had minimal rights to participate in the proceeding and there was no disclosure of how the settlement amounts were reached, or substantively, because the payouts ordered by the OSC were only a small proportion of the investors’ losses. The Court found that only a class action would overcome the economic barriers to access to justice that the investors would otherwise face.

A link to the decision can be found here: