The decision of Kennedy v Akumin Inc. et al, 2022 ONSC 2571 resolves a carriage motion pursuant to section 13.1 of the amended Ontario Class Proceedings Act, 1992 (CPA), involving competing class actions (the “Kennedy action” and the “Longair action”) each of which asserted a statutory secondary market misrepresentation cause of action pursuant to the Ontario Securities Act, as well as causes of action for common law misrepresentation, negligence, and claims under section 130.1 of the Ontario Securities Act for misrepresentations in an offering memorandum. The actions were prompted by announcements from Akumin Inc. that there were material errors in its previously issued financial statements that required restatement.
The motion judge identified the following key differences between the actions:
- The Longair action proposed a longer class period, beginning with the filing of an interim financial statement in 2019 and ending in late 2021 with the filing of revised financial statements and MD&A
- The Kennedy action alleged one overarching misrepresentation, while the Longair action claimed at least five different categories of misrepresentation
- The Longair action named additional defendants, including three additional directors and Akumin’s auditor
Carriage was granted to the Longair action. The Longair action was found to better advance the goals of the CPA, specifically access to justice through its longer class period enabling it to capture claims that would be left out of the Kennedy action, and behaviour modification by the inclusion of the additional defendants.
While the court expressed reservations about the theory of the claim against the Alkumin’s auditor, the risk that it would disproportionately complicate the litigation was outweighed by the risk that viable and proportionate claims by class members would not be raised in the Kennedy action. Further, any disproportionate complexity that would arise if the theory behind the claim against the auditor turned out to be flawed would be expected to be resolved on the motion to proceed with the statutory secondary market misrepresentation claim.
This is one of the first carriage decisions under s. 13.1 of the CPA which was enacted in October 2020. Drawing upon a previous decision of Justice Perell, the motion judge agreed that section 13.1 “demands a case-by-case analysis of efficiency, productivity, and proportionality and the needs of Class Members, as distinct from the wants of class counsel”. In particular, it requires a court to consider what is “precisely necessary for access to justice to the class members and their particular circumstances” and discourages case theories that may be “a waste of resources or that may be a drag on the proceeding or that are not worth the trouble or effort needed to achieve access to justice”. These principles were applied through the lens of the goals of the CPA, including access to justice and achieving behaviour modification.