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CLASS OR REPRESENTATIVE ACTIONS - Procedure - Appeals - Appeal as of right - Leave to appeal - Time to appeal - Extension of time

Wednesday, April 18, 2018 @ 8:46 AM  

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Motion by the underwriter defendants to quash the plaintiff’s appeal of the decision denying certification of their class proceeding against the underwriters. Motion by the plaintiff for an extension of time to seek leave to appeal, should the defendants’ motion be successful. The plaintiff class members were non-US share purchasers in Hycroft Gold Corp. (Hycroft). The plaintiff claimed Hycroft made misrepresentations in its Prospectus for public offering. The underwriters were not added as parties until Hycroft filed for bankruptcy protection. The certification motion judge certified the class proceeding against the Hycroft defendants. He dismissed the class proceeding against the underwriters, but permitted members of the class to pursue their claims individually.

HELD: Motions allowed. As a class proceeding existed, the Class Proceedings Act applied. Because there was no dismissal of the request to invoke a class proceeding process, there was no right to appeal to the Divisional Court pursuant to section 30(1) of the Act. The certification motion judge did not deny the plaintiff the ability to proceed, but held that the claims against the underwriters should be pursued as individual actions. There had been no undue delay by the plaintiff. The plaintiff had raised issues of some merit. It was in the interest of justice to grant an extension of time to file the application for leave to appeal.

LBP Holdings Ltd. v. Hycroft Gold Corp., [2018] O.J. No. 1364, Ontario Superior Court of Justice - Divisional Court, J.A. Thorburn J., March 14, 2018. Digest No. TLD-April162008006