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Smith v. Sino-Forest Corporation, 34 C.P.C. (7th) 76 (Ont. S.C.J.)

CITATION: Smith v Sino-Forest Corporation, 2012 ONSC24

COURT FILE NO.:  11-CV-428238CP

COURT FILE NO.: 11-CV-431153CP

COURT FILE NO.:  11-CV-435826CP

DATE: January 6, 2012

 

ONTARIO

SUPERIOR COURT OF JUSTICE

 

BETWEEN:

Douglas Smith and Zhongjun Goa

Plaintiffs

– and –

 

Sino-Forest Corporation, Allen T.Y. Chan, James M.E. Hyde, Edmund Mak, W. Judson Martin, Simon Murray, Peter D.H. Wang, David J. Horsley, Ernst & Young LLP, BDO Limited, Credit Suisse Securities (Canada), Inc., TD Securities Inc., Dundee Securities Corporation, RBC Dominion Securities Inc., Scotia Capital Inc., CIBC World Markets Inc., Merrill Lynch Canada, Inc., Canaccord Financial Ltd., and Maison Placements Canada Inc.

Defendants

 

Proceeding under the Class Proceedings Act, 1992

 

AND BETWEEN:

The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada and the Trustees of the International Union of Operating Engineers Local 793 Pension Plan for Operating Engineers in Ontario

 

Plaintiffs

– and –

 

Sino-Forest Corporation, Ernst & Young LLP, Allen T.Y. Chan, W. Judson Martin, Kai Kit Poon, David J. Horsley, William E. Ardell, Kai Kit Poon, David J. Horsley, James P Bowland, James M.E. Hyde, Edmund Mak, Simon Murray, Peter Wang, Garry J. West,  Pöyry (Beijing) Consulting Company Limited, Credit Suisse Securities (Canada), Inc., TD Securities Inc., Dundee Securities Corporation, RBC Dominion Securities Inc., Scotia Capital Inc., CIBC World Markets Inc., Merrill Lynch Canada, Inc. Canaccord Financial Ltd., and Maison Placements Canada Inc.

 

Defendants

 

Proceeding under the Class Proceedings Act, 1992

AND BETWEEN:

Northwest & Ethical Investments L.P., Comité Syndical National de Retraite Bâtirente Inc.

Plaintiffs

– and –

 

Sino-Forest Corporation, Allen T.Y. Chan, W. Judson Martin, Kai Kit Poon, David J. Horsley, Hua Chen, Wei Mao Zhao, Alfred C.T. Hung, Albert Ip, George Ho, Thomas M. Maradin, William E. Ardell, James M.E. Hyde, Simon Murray, Garry J. West, James P. Bowland, Edmund Mak, Peter Wang, Kee Y. Wong, The Estate of John Lawrence, Simon Yeung, Ernst & Young LLP, BDO Limited, Pöyry Forest Industry PTE Limited, Pöyry (Beijing) Consulting Company Limited, JP Management Consulting (Asia-Pacific) PTE Ltd., Dundee Securities Corporation, UBS Securities Canada Inc., Haywood Securities Inc., Credit Suisse Securities (Canada), Inc., TD Securities Inc., RBC Dominion Securities Inc., Scotia Capital Inc., CIBC World Markets Inc., Merrill Lynch Canada, Inc. Canaccord Financial Ltd., Maison Placements Canada Inc., Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA), LLC, Merrill Lynch, Pierce, Fenner & Smith, Inc.

Defendants

Proceeding under the Class Proceedings Act, 1992

 

COUNSEL:

  •      J.P. Rochon, J. Archibald, and S. Tambakos for the Plaintiffs in 11-CV-428238CP
  •      K.M. Baert, J. Bida, and C.M. Wright for the Plaintiffs in 11-CV-431153CP
  •      J.C. Orr, V. Paris, N. Mizobuchi, and A. Erfan for the Plaintiffs in 11-CV-435826CP
  •      M. Eizenga for the defendant Sino-Forest Corporation
  •      P. Osborne and S. Roy for the defendant Ernst & Young LLP
  •      E. Cole for the defendant Allen T.Y. Chan
  •      J. Fabello for the defendant underwriters

HEARING DATES: December 20 and 21, 2011

PERELL, J.

REASONS FOR DECISION

A.                 INTRODUCTION

[1]               This is a carriage motion under the Class Proceedings Act, 1992, S.O. 1992, c. 6. In this particular carriage motion, four law firms are rivals for the carriage of a class action against Sino-Forest Corporation. There are currently four proposed Ontario class actions against Sino-Forest to recover losses alleged to be in the billions of dollars arising from the spectacular crash in value of its shares and notes.

[2]               Practically speaking, carriage motions involve two steps. First, the rival law firms that are seeking carriage of a class action extoll their own merits as class counsel and the merits of their client as the representative plaintiff. During this step, the law firms explain their tactical and strategic plans for the class action, and, thus, a carriage motion has aspects of being a casting call or rehearsal for the certification motion.

[3]               Second, the rival law firms submit that with their talent and their litigation plan, their class action is the better way to serve the best interests of the class members, and, thus, the court should choose their action as the one to go forward. No doubt to the delight of the defendants and the defendants’ lawyers, which have a watching brief, the second step also involves the rivals hardheartedly and toughly reviewing and criticizing each other’s work and pointing out flaws, disadvantages, and weaknesses in their rivals’ plans for suing the defendants.

[4]               The law firms seeking carriage are: Rochon Genova LLP; Koskie Minsky LLP; Siskinds LLP; and Kim Orr Barristers P.C., all competent, experienced, and veteran class action law firms.

[5]               For the purposes of deciding the carriage motions, I will assume that all of the rivals have delivered their Statements of Claim as they propose to amend them.

[6]               Koskie Minsky and Siskinds propose to act as co-counsel and to consolidate two of the actions. Thus, the competition for carriage is between three proposed class actions; namely:

  •      Smith v. Sino-Forest Corp. (11-CV-428238CP) (“Smith v. Sino-Forest”) with Rochon Genova as Class Counsel
  •      The Trustees of Labourers’ Pension Fund of Central and Eastern Canada v. Sino-Forest Corp. (11-CV-431153CP) (“Labourers v. Sino-Forest”) with Koskie Minsky and Siskinds as Class Counsel (This action would be consolidated withGrant. v. Sino­ Forest” (CV-11-439400-00CP)
  •      Northwest & Ethical Investments L.P. v. Sino-Forest Corp. (11-CV-435826CP) (“Northwest v. Sino-Forest”) with Kim Orr as Class Counsel.

[7]               It has been a very difficult decision to reach, but for the reasons that follow, I stay Smith v. Sino-Forest and Northwest v. Sino-Forest, and I grant carriage to Koskie Minsky and Siskinds in Labourers v. Sino-Forest.  

[8]               I also grant leave to the plaintiffs in Labourers v. Sino-Forest to deliver a Fresh as Amended Statement of Claim, which may include the joinder of the plaintiffs and the causes of action set out in Grant v. Sino-Forest, Smith v. Sino-Forest, and Northwest v. Sino-Forest, as the plaintiffs may be advised.  

[9]               This order is without prejudice to the rights of the Defendants to challenge the Fresh as Amended Statement of Claim as they may be advised. In any event, nothing in these reasons is intended to make findings of fact or law binding on the Defendants or to be a pre-determination of the certification motion.    

B.                 METHODOLOGY

[10]           To explain my reasons, first, I will describe the jurisprudence about carriage motions. Second, I will describe the evidentiary record for the carriage motions. Third, I will describe the factual background to the claims against Sino-Forest, which is the principal but not the only target of the various class actions. Fourth, deferring my ultimate conclusions, I will analyze the rival actions that are competing for carriage under twelve headings and describe the positions and competing arguments of the law firms competing for carriage. Fifth, I will culminate the analysis of the competing actions by explaining the carriage order decision. Sixth and finally, I will finish with a concluding section.

[11]           Thus, the organization of these Reasons for Decision is as follows:

  •    Introduction
  •    Methodology
  •    Carriage Orders Jurisprudence
  •    Evidentiary Background
  •    Factual Background to the Claims against Sino-Forest
  •    Analysis of the Competing Class Actions

o      The Attributes of Class Counsel

o      Retainer, Legal and Forensic Resources, and Investigations

o      Proposed Representative Plaintiffs

o      Funding

o      Conflicts of Interest

o      Definition of Class Membership

o      Definition of Class Period

o      Theory of the Case against the Defendants

o      Joinder of Defendants

o      Causes of Action

o      The Plaintiff and the Defendant Correlation

o      Prospects of Certification

  •    Carriage Order

o      Introduction

o      Neutral or Non-Determinative Factors

o      Determinative Factors

  •    Conclusion

C.                 CARRIAGE ORDERS JURISPRUDENCE

[12]           There should not be two or more class actions that proceed in respect of the same putative class asserting the same cause(s) of action, and one action must be selected: Vitapharm Canada Ltd. v. F. Hoffman-Laroche Ltd., [2000] O.J. No. 4594 (S.C.J.) at para. 14. See also Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2001] O.J. No. 3682 (S.C.J.), aff’d 2002 CanLII 53274 (ON CA), [2002] O.J. No. 2010 (C.A.). When counsel have not agreed to consolidate and coordinate their actions, the court will usually select one and stay all other actions: Lau v. Bayview Landmark, 2004 CanLII 859 (ON SC), [2004] O.J. No. 2788 (S.C.J.) at para. 19.

[13]           Where two or more class proceedings are brought with respect to the same subject matter, a proposed representative plaintiff in one action may bring a carriage motion to stay all other present or future class proceedings relating to the same subject matter: Setterington v. Merck Frosst Canada Ltd., [2006] O.J. No. 376 (S.C.J.) at paras. 9-11; Ricardo v. Air Transat A.T. Inc., [2002] O.J. No. 1090 (S.C.J.), leave to appeal dismissed [2002] O.J. No. 2122 (S.C.J.).

[14]           The Class Proceedings Act, 1992, confers upon the court a broad discretion to manage the proceedings. Section 13 of the Act authorizes the court to “stay any proceeding related to the class proceeding,” and s. 12 authorizes the court to “make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination.” Section 138 of the Courts of Justice Act, R.S.O. 1990, c. 43 directs that “as far as possible, multiplicity of legal proceedings shall be avoided.” See: Setterington v. Merck Frosst Canada Ltd., supra, at paras. 9-11.

[15]           The court also has its normal jurisdiction under the Rules of Civil Procedure. Section 35 of the Class Proceedings Act, 1992, provides that the rules of court apply to class proceedings. Among the rules that are available is Rule 6, the rule that empowers the court to consolidate two or more proceedings or to order that they be heard together.

[16]           In determining carriage of a class proceeding, the court’s objective is to make the selection that is in the best interests of class members, while at the same time being fair to the defendants and being consistent with the objectives of the Class Proceedings Act, 1992: Vitapharm Canada Ltd. v. F. Hoffman-La Roche Ltd., [2000] O.J. No. 4594 (S.C.J.) at para. 48; Setterington v. Merck Frosst Canada Ltd., supra, at para. 13 (S.C.J.); Sharma v. Timminco Ltd. (2009), 2009 CanLII 58974 (ON SC), 99 O.R. (3d) 260 (S.C.J.) at para. 14. The objectives of a class proceeding are access to justice, behaviour modification, and judicial economy for the parties and for the administration of justice.

[17]           Courts generally consider seven non-exhaustive factors in determining which action should proceed: (1) the nature and scope of the causes of action advanced; (2) the theories advanced by counsel as being supportive of the claims advanced; (3) the state of each class action, including preparation; (4) the number, size and extent of involvement of the proposed representative plaintiffs; (5) the relative priority of the commencement of the class actions; (6) the resources and experience of counsel; and (7) the presence of any conflicts of interest: Sharma v. Timminco Ltd., supra at para. 17.

[18]           In these reasons, I will examine the above factors under somewhat differently- named headings and in a different order and combination. And, I will add several more factors that the parties made relevant to the circumstances of the competing actions in the cases at bar, including: (a) funding; (b) definition of class membership; (c) definition of class period; (d) joinder of defendants; (e) the plaintiff and defendant correlation; and, (f) prospects of certification.

[19]           In addition to identifying relevant factors, the carriage motion jurisprudence provides guidance about how the court should determine carriage. Although the determination of a carriage motion will decide which counsel will represent the plaintiff, the task of the court is not to choose between different counsel according to their relative resources and expertise; rather, it is to determine which of the competing actions is more, or most, likely to advance the interests of the class: Tiboni v. Merck Frosst Canada Ltd., 2008 CanLII 37911 (ON SC), [2008] O.J. No. 2996 (S.C.J.), sub. nom Mignacca v. Merck Frosst Canada Ltd., leave to appeal granted 2008 CanLII 61238 (ON SC), [2008] O.J. No. 4731 (S.C.J.), aff’d 2009 CanLII 10059 (ON SCDC), [2009] O.J. No. 821 (Div. Ct.), application for leave to appeal to C.A. ref’d May 15, 2009, application for leave to appeal to S.C.C. ref’d [2009] S.C.C.A. No. 261.

[20]           On a carriage motion, it is inappropriate for the court to embark upon an analysis as to which claim is most likely to succeed unless one is “fanciful or frivolous”: Setterington v. Merck Frosst Canada Ltd., supra, at para. 19.

[21]           In analysing whether the prohibition against a multiplicity of proceedings would be offended, it is not necessary that the multiple proceedings be identical or mirror each other in every respect; rather, the court will look at the essence of the proceedings and their similarities: Setterington v. Merck Frosst Canada Ltd., supra,  at para. 11.

[22]           Where there is a competition for carriage of a class proceeding, the circumstance that one competitor joins more defendants is not determinative; rather, what is important is the rationale for the joinder and whether or not it is advantageous for the class to join the additional defendants: Joel v Menu Foods Gen-Par Limited, [2007] B.C.J. No. 2159 (B.C.S.C.); Genier v. CCI Capital Canada Ltd., [2005] O.J. No. 1135 (S.C.J.); Setterington v. Merck Frosst Canada Ltd., supra.

[23]           In determining which firm should be granted carriage of a class action, the court may consider whether there is any potential conflict of interest if carriage is given to one counsel as opposed to others: Joel v. Menu Foods Gen-Par Limited, supra at para. 16; Vitapharm Canada Ltd. v. F. Hoffman-Laroche Ltd., [2000] O.J. No. 4594 (S.C.J.) and [2001] O.J. No. 3673 (S.C.J.).

D.               EVIDENTIARY BACKGROUND

Smith v. Sino-Forest

[24]           In support of its carriage motion in Smith v. Sino-Forest, Rochon Genova delivered affidavits from:

  •      Ken Froese, who is Senior Managing Director of Froese Forensic Partners Ltd., a forensic accounting firm
  •      Vincent Genova, who is the managing partner of Rochon Genova
  •      Douglas Smith, the proposed representative plaintiff
Labourers v. Sino-Forest
[25]           In support of their carriage motion in Labourers v. Sino-Forest, Koskie Minsky and Siskinds delivered affidavits from:

  •      Dimitri Lascaris, who is a partner at Siskinds and the leader of its class action team
  •      Michael Gallagher, who is the Chair of the Board of Trustees of Operating Engineers Local 793 Pension Plan for Operating Engineers in Ontario (“Operating Engineers Fund”), a proposed representative plaintiff
  •      David Grant, a proposed representative plaintiff
  •      Richard Grottheim, who is the Chief Executive Officer of Sjunde AP-Fonden, a proposed representative plaintiff
  •      Joseph Mancinelli, who is the Chair of the Board of Trustees of The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada (“Labourers’ Fund”), a proposed representative plaintiff. He also holds senior positions with the Labourers International Union of North America, which has more than 80,000 members in Canada
  •      Ronald Queck, who is Director of Investments of the Healthcare Employee Benefits Plans of Manitoba (“Healthcare Manitoba”), which would be a prominent class member in the proposed class action
  •      Frank Torchio, who is a chartered financial analyst and an expert in finance and economics who was retained to opine, among other things, about the damages suffered under various proposed class periods by Sino-Forest shareholders and noteholders under s. 138.5 of the Ontario Securities Act
  •      Robert Wong, who is a  proposed representative plaintiff
  •      Mark Zigler, who is the managing partner of Koskie Minsky
Northwest v. Sino-Forest
[26]           In support of its carriage motion in Northwest v. Sino-Forest, Kim Orr delivered affidavits from:

  •      Megan B. McPhee, a principal of the firm
  •      John Mountain, who is the Senior Vice President, Legal and Human Resources, the Chief Compliance Officer and Corporate Secretary of Northwest Ethical Investments L.P. (“Northwest”), a proposed representative plaintiff
  •      Zachary Nye, a financial economist who was retained to respond to Mr. Torchio’s opinion
  •      Daniel Simard, who is General Co-Ordinator and a non-voting ex-officio member of the Board of Directors and Committees of Comité syndical national de retraite Bâtirente inc. (“Bâtirente”),  a proposed representative plaintiff
  •      Michael C. Spencer, a lawyer qualified to practice in New York, California, and Ontario, who is counsel to Kim Orr and a partner and member of the executive committee at the American law firm of Milberg LLP
  •      Brian Thomson, who is Vice-President, Equity Investments for British Columbia Investment Management Corporation (“BC Investment”), a proposed representative plaintiff

E.                 FACTUAL BACKGROUND TO THE CLAIMS AGAINST SINO-FOREST

[27]           The following factual background is largely an amalgam made from the unproven allegations in the Statements of Claim in the three proposed class actions and unproven allegations in the motion material delivered by the parties.

[28]           The Defendant, Sino-Forest is a Canadian public company incorporated under the Canada Business Corporations Act, R.S.C., 1985, c. C-44 with its registered office in Mississauga, Ontario, and its head office in Hong Kong. Its shares have traded on the Toronto Stock Exchange (“TSX”) since 1995. It is a forestry plantation company with operations centered in the People’s Republic of China. Its trading of securities is subject to the regulation of the Ontario Securities Act, R.S.O. 1990, c. S.5, under which it is a “reporting issuer” subject to the continuous disclosure provisions of Part XVIII of the Act and a “responsible issuer” subject to civil liability for secondary market misrepresentation under Part XXIII.1 of the Act.

[29]           The Defendant, Ernst & Young LLP (“E&Y”) has been Sino-Forest’s auditor from 1994 to date, except for 1999, when the now-defunct Arthur Andersen LLP did the audit, and 2005 and 2006, when the predecessor of what is now the Defendant, BDO Limited (“BDO”) was Sino-Forest’s auditor. BDO is the Hong Kong member of BDO International Ltd., a global accounting and audit firm.

[30]           E&Y and BDO are “experts” within the meaning of s. 138.1 of the Ontario Securities Act.

[31]           From 1996 to 2010, in its financial statements, Sino-Forest reported only profits, and it appeared to be an enormously successful enterprise that substantially outperformed its competitors in the forestry industry. Sino-Forest’s 2010 Annual Report issued in May 2011 reported that Sino-Forest had net income of $395 million and assets of $5.7 billion. Its year-end market capitalization was $5.7 billion with approximately 246 million common shares outstanding.

[32]           It is alleged that Sino-Forest and its auditors E&Y and BDO repeatedly misrepresented that Sino-Forest’s financial statements complied with GAAP (“generally accepted accounting principles”).

[33]           It is alleged that Sino-Forest and its officers and directors made other misrepresentations about the assets, liabilities, and performance of Sino-Forest in various filings required under the Ontario Securities Act. It is alleged that these misrepresentations appeared in the documents used for the offerings of shares and bonds in the primary market and again in what are known as Core Documents under securities legislation, which documents are available to provide information to purchasers of shares and bonds in the secondary market. It is also alleged that misrepresentations were made in oral statements and in Non-Core Documents.

[34]           The Defendant, Allen T.Y. Chan was Sino-Forest’s co-founder, its CEO, and a director until August 2011. He resides in Hong Kong.

[35]           The Defendant, Kai Kit Poon, was Sino-Forest’s co-founder, a director from 1994 until 2009, and Sino-Forest’s President. He resides in Hong Kong.

[36]           The Defendant, David J. Horsley was a Sino-Forest director (from 2004 to 2006) and was its CFO. He resides in Ontario.

[37]           The Defendants, William E. Ardell (resident of Ontario, director since 2010), James P. Bowland (resident of Ontario, director since 2011), James M.E. Hyde (resident of Ontario, director since 2004), John Lawrence (resident of Ontario, deceased, director 1997 to 2006), Edmund Mak (resident of British Columbia, director since 1994), W. Judson Martin (resident of Hong Kong, director since 2006, CEO since August 2011), Simon Murray (resident of Hong Kong, director since 1999), Peter Wang (resident of Hong Kong, director since 2007) and Garry J. West (resident of Ontario, director since 2011) were members of Sino-Forest’s Board of Directors.

[38]           The Defendants, Hua Chen (resident of Ontario), George Ho (resident of China), Alfred C.T. Hung (resident of China), Alfred Ip (resident of China), Thomas M. Maradin (resident of Ontario), Simon Yeung (resident of China) and Wei Mao Zhao (resident of Ontario) are vice presidents of Sino-Forest. The defendant Kee Y. Wong was CFO from 1999 to 2005.

[39]           Sino-Forest’s forestry assets were valued by the Defendant, Pöyry (Beijing) Consulting Company Limited, (“Pöyry”), a consulting firm based in Shanghai, China. Associated with Pöyry are the Defendants, Pöyry Forest Industry PTE Limited (“Pöyry- Forest”) and JP Management Consulting (Asia-Pacific) PTE Ltd. (“JP Management”). Each Pöyry Defendant is an expert as defined by s. 138.1 of the Ontario Securities Act.

[40]           Pöyry prepared technical reports dated March 8, 2006, March 15, 2007, March 14, 2008, April 1, 2009, and April 23, 2010 that were filed with SEDAR (the System of Electronic Document Analysis and Retrieval) and made available on Sino-Forest’s website. The reports contained a disclaimer and a limited liability exculpatory provision purporting to protect Pöyry from liability.

[41]           In China, the state owns the forests, but the Chinese government grants forestry rights to local farmers, who may sell their lumber rights to forestry companies, like Sino-Forest. Under Chinese law, Sino-Forest was obliged to maintain a 1:1 ratio between lands for forest harvesting and lands for forest replantation.

[42]           Sino-Forest’s business model involved numerous subsidiaries and the use of authorized intermediaries or “AIs” to assemble forestry rights from local farmers. Sino-Forest also used authorized intermediaries to purchase forestry products. There were numerous AIs, and by 2010, Sino-Forest had over 150 subsidiaries, 58 of which were formed in the British Virgin Islands and at least 40 of which were incorporated in China.

[43]           It is alleged that from at least March 2003, Sino-Forest used its business model and non-arm’s length AIs to falsify revenues and to facilitate the misappropriation of Sino-Forest’s assets.

[44]           It is alleged that from at least March 2004, Sino-Forest made false statements about the nature of its business, assets, revenue, profitability, future prospects, and compliance with the laws of Canada and China. It is alleged that Sino-Forest and other Defendants misrepresented that Sino-Forest’s financial statements complied with GAPP (“generally accepted accounting principles”). It is alleged that Sino-Forest misrepresented that it was an honest and reputable corporate citizen. It is alleged that Sino-Forest misrepresented and greatly exaggerated the nature and extent of its forestry rights and its compliance with Chinese forestry regulations. It is alleged that Sino-Forest inflated its revenue, had questionable accounting practices, and failed to pay a substantial VAT liability. It is alleged that Sino-Forest and other Defendants misrepresented the role of the AIs and greatly understated the risks of Sino-Forest utilizing them. It is alleged that Sino-Forest materially understated the tax-related risks from the use of AIs in China, where tax evasion penalties are severe and potentially devastating.

[45]           Starting in 2004, Sino-Forest began a program of debt and equity financing. It amassed over $2.1 billion from note offerings and over $906 million from share issues.

[46]           On May 17, 2004, Sino-Forest filed its Annual Information Form for the 2003 year. It is alleged in Smith v. Sino-Forest that the 2003 AIF contains the first misrepresentation in respect of the nature and role of the authorized intermediaries, which allegedly played a foundational role in the misappropriation of Sino-Forest’s assets.

[47]           In August 2004, Sino-Forest issued an offering memorandum for the distribution of 9.125% guaranteed senior notes ($300 million (U.S.)). The Defendant, Morgan Stanley & Co. Incorporated (“Morgan”) was a note distributor that managed the note offering in 2004 and purchased and resold notes.

[48]           Under the Sino-Forest note instruments, in the event of default, the trustee may sue to collect payment of the notes. A noteholder, however, may not pursue any remedy with respect to the notes unless, among other things, written notice is given to the trustee by holders of 25% of the outstanding principal asking the trustee to pursue the remedy and the trustee does not comply with the request. The notes provide that no noteholder shall obtain a preference or priority over another noteholder. The notes contain a waiver and release of Sino-Forest’s directors, officers, and shareholders from all liability “for the payment of the principal of, or interest on, or other amounts in respect of the notes or for any claim based thereon or otherwise in respect thereof.” The notes are all governed by New York law and include non-exclusive attornment clauses to the jurisdiction of New York State and United States federal courts.

[49]           On March 19, 2007, Sino-Forest announced its 2006 financial results. The appearance of positive results caused a substantial increase in its share price which moved from $10.10 per share to $13.42 per share ten days later, a 33% increase.

[50]           In May 2007, Sino-Forest filed a Management Information Circular that represented that it maintained a high standard of corporate governance. It indicated that its Board of Directors made compliance with high governance standards a top priority.

[51]           In June 2007, Sino-Forest made a share prospectus offering of 15.9 million common shares at $12.65 per share ($201 million offering). Chan, Horsley, Martin, and Hyde signed the prospectus. The underwriters (as defined by s. 1. (1) of the Ontario Securities Act) were the Defendants, CIBC World Markets Inc. (“CIBC”), Credit Suisse Securities Canada (Inc.) (“Credit Suisse”), Dundee Securities Corporation (“Dundee”), Haywood Securities Inc. (“Haywood”), Merrill Lynch Canada, Inc. (“Merrill”) and UBS Securities Canada Inc. (“UBS”).

[52]           In July 2008, Sino-Forest issued a final offering memorandum for the distribution of 5% convertible notes ($345 million (U.S)) due 2013. The Defendants, Credit Suisse Securities (USA), LLC (“Credit Suisse (USA)”), and Merrill Lynch, Fenner & Smith Inc. (“Merrill-Fenner”) were note distributors.

[53]           In June 2009, Sino-Forest made a share prospectus offering of 34.5 million common shares at $11.00 per share ($380 million offering). Chan, Horsley, Martin, and Hyde signed the prospectus. The underwriters (as defined by s. 1. (1) of the Ontario Securities Act) were Credit Suisse, Dundee, Merrill, the Defendant, Scotia Capital Inc. (“Scotia”), and the Defendant, TD Securities Inc. (“TD”).

[54]           In June 2009, Sino-Forest issued a final offering memorandum for the exchange of senior notes for new guaranteed senior 10.25% notes ($212 million (U.S.) offering) due 2014. Credit Suisse (USA) was the note distributor.

[55]           In December 2009, Sino-Forest made a share prospectus offering of 22 million common shares at $16.80 per share ($367 million offering). Chan, Horsley, Martin, and Hyde signed the prospectus. The underwriters (as defined by s. 1. (1) of the Ontario Securities Act) were Credit Suisse, the Defendant, Canaccord Financial Ltd. (“Canaccord”), CIBC, Dundee, the Defendant, Maison Placements Canada Inc. (“Maison”), Merrill, the Defendant, RBC Dominion Securities Inc. (“RBC”), Scotia, and TD.

[56]           In December 2009, Sino-Forest issued an offering memorandum for 4.25% convertible senior notes ($460 million (U.S.) offering) due 2016. The note distributors were Credit Suisse (USA), Merrill-Fenner, and TD.

[57]           In October 2010, Sino-Forest issued an offering memorandum for 6.25% guaranteed senior notes ($600 million (U.S.) offering) due 2017.  The note distributors were Banc of America Securities LLC (“Banc of America”) and Credit Suisse USA.

[58]           Sino-Forest’s per-share market price reached a high of $25.30 on March 31, 2011.

[59]           It is alleged that all the financial statements, prospectuses, offering memoranda, MD&As (Management Discussion and Analysis), AIFs (Annual Information Forms) contained misrepresentations and failures to fully, fairly, and plainly disclose all material facts relating to the securities of Sino-Forest, including misrepresentations about Sino-Forest’s assets, its revenues, its business activities, and its liabilities.

[60]           On June 2, 2011, Muddy Waters Research, a Hong Kong investment firm that researches Chinese businesses, released a research report about Sino-Forest. Muddy Waters is operated by Carson Block, its sole full-time employee. Mr. Block was a short-seller of Sino-Forest stock. His Report alleged that Sino-Forest massively exaggerates its assets and that it had engaged in extensive related-party transactions since the company’s TSX listing in 1995. The Report asserted, among other allegations, that a company-reported sale of $231 million in timber in Yunnan Province was largely fabricated. It asserted that Sino-Forest had overstated its standing timber purchases in Yunnan Province by over $800 million.

[61]           The revelations in the Muddy Waters Report had a catastrophic effect on Sino-Forest’s share price. Within two days, $3 billion of market capitalization was gone and the market value of Sino-Forest’s notes plummeted.

[62]           Following the release of the Muddy Waters Report, Sino-Forest and certain of its officers and directors released documents and press releases and made public oral statements in an effort to refute the allegations in the Report. Sino-Forest promised to produce documentation to counter the allegations of misrepresentations. It appointed an Independent Committee of Messrs. Ardell, Bowland and Hyde to investigate the allegations contained in the Muddy Waters Report. After these assurances, Sino-Forest’s share price rebounded, trading as high as 60% of its previous day’s close, eventually closing on June 6, 2011 at $6.16, approximately 18% higher from its previous close.

[63]           On June 7, the Independent Committee announced that it had appointed PricewaterhouseCoopers (“PWC”) to assist with the investigation. Several law firms were also hired to assist in the investigation.

[64]           However, bad news followed. Reporters from the Globe and Mail travelled to China, and on June 18 and 20, 2011, the newspaper published articles that reported that Yunnan Province forestry officials had stated that their records contradicted Sino-Forest’s claim that it controlled almost 200,000 hectares in Yunnan Province.

[65]           On August 26, 2011, the Ontario Securities Commission (“OSC”) issued an order suspending trading in Sino-Forest’s securities and stated that: (a) Sino-Forest appears to have engaged in significant non-arm’s length transactions that may have been contrary to Ontario securities laws and the public interest; (b) Sino-Forest and certain of its officers and directors appear to have misrepresented in a material respect, some of its revenue and/or exaggerated some of its timber holdings in public filings under the securities laws; and (c) Sino-Forest and certain of its officers and directors, including its CEO, appear to be engaging or participating in acts, practices or a course of conduct related to its securities which it and/or they know or reasonably ought to know perpetuate a fraud.

[66]           The OSC named Chan, Ho, Hung, Ip, and Yeung as respondents in the proceedings before the Commission. Sino-Forest placed Messrs. Hung, Ho and Yeung on administrative leave. Mr. Ip may only act on the instructions of the CEO.

[67]           Having already downgraded its credit rating for Sino-Forest’s securities, Standard & Poor withdrew its rating entirely, and Moody’s reduced its rating to “junk” indicating a very high credit risk.

[68]           On September 8, 2011, after a hearing, the OSC continued its cease-trading order until January 25, 2012, and the OSC noted the presence of evidence of conduct that may be harmful to investors and the public interest.

[69]           On November 10, 2011, articles in the Globe and Mail and the National Post reported that the RCMP had commenced a criminal investigation into whether executives of Sino-Forest had defrauded Canadian investors.

[70]           On November 13, 2011, at a cost of $35 million, Sino-Forest’s Independent Committee released its Second Interim Report, which included the work of the committee members, PWC, and three law firms. The Report refuted some of the allegations made in the Muddy Waters Report but indicated that evidence could not be obtained to refute other allegations. The Committee reported that it did not detect widespread fraud, and noted that due to challenges it faced, including resistance from some company insiders, it was not able to reach firm conclusions on many issues.

[71]           On December 12, 2011, Sino-Forest announced that it would not file its third-quarter earnings’ figures and would default on an upcoming interest payment on outstanding notes. This default may lead to the bankruptcy of Sino-Forest.

[72]           The chart attached as Schedule “A” to this judgment shows Sino- Forest’s stock price on the TSX from January 1, 2004, to the date that its shares were cease-traded on August 26, 2011.

F.                 ANALYSIS OF THE COMPETING CLASS ACTIONS

1.      The Attributes of Class Counsel

Smith v. Sino-Forest
[73]           Rochon Genova is a boutique litigation firm in Toronto focusing primarily on class action litigation, including securities class actions. It is currently class counsel in the CIBC subprime litigation, which seeks billions in damages on behalf of CIBC shareholders for the bank’s alleged non-disclosure of its exposure to the U.S. subprime residential mortgage market. It is currently the lawyer of record in Fischer v. IG Investment Management Ltd and Frank v. Farlie Turner, both securities cases, and it is acting for aggrieved investors in litigation involving two multi-million dollar Ponzi schemes. It acted on behalf of Canadian shareholders in relation to the Nortel securities litigation, as well as, large scale products liability class actions involving Baycol, Prepulsid, and Maple Leaf Foods, among many other cases.

[74]           Rochon Genova has a working arrangement with Lieff Cabrasser Heimann & Bernstein, one of the United States’ leading class action firms.

[75]           Lead lawyers for Smith v. Sino-Forest are Joel Rochon and Peter Jervis, both senior lawyers with considerable experience and proficiency in class actions and securities litigation.

Labourers v. Sino-Forest
[76]           Koskie Minsky is a Toronto law firm of 43 lawyers with a diverse practice including bankruptcy and insolvency, commercial litigation, corporate and securities, taxation, employment, labour, pension and benefits, professional negligence and insurance litigation.

[77]           Koskie Minsky has a well-established and prominent class actions practice, having been counsel in every sort of class proceeding, several of them being landmark cases, including Hollick v Toronto (City), Cloud v The Attorney General of Canada, and Caputo v Imperial Tobacco. It is currently representative counsel on behalf of all former Canadian employees in the multi-billion dollar Nortel insolvency.

[78]           Siskinds is a London and Toronto law firm of 70 lawyers with a diverse practice including bankruptcy and insolvency, business law, and commercial litigation. It has an association with the Québec law firm Siskinds, Desmeules, avocats.

[79]           At its London office, Siskinds has a team of 14 lawyers that focus their practice on class actions, in some instances exclusively. The firm has a long and distinguished history at the class actions bar, being class counsel in the first action certified as a class action, Bendall v. McGhan Medical Corp. (1993), 1993 CanLII 5550 (ON SC), 14 O.R. (3d) 734, and it has almost a monopoly on securities class actions, having filed approximately 40 of this species of class actions, including 24 that advance claims under Part XXX.1 of the Ontario Securities Act.

[80]           As mentioned again later, for the purposes of Labourers’ Fund v. Sino-Forest, Koskie Minsky and Siskinds have a co-operative arrangement with the U.S. law firm, Kessler Topaz Meltzer & Check LLP (“Kessler Topaz”), which is a 113-lawyer law firm specializing in complex litigation with a very high profile and excellent reputation as counsel in securities class action lawsuits in the United States.

[81]           Lead lawyers for Labourers’ v. Sino-Forest are Kirk M. Baert, Jonathan Ptak, Mark Ziegler, and Michael Mazzuca of Koskie Minsky and A. Dimitri Lascaris of Siskinds, all senior lawyers with considerable experience and proficiency in class actions and securities litigation.

Northwest v. Sino-Forest
[82]           Kim Orr is a boutique litigation firm in Toronto focusing primarily on class action litigation, including securities class actions. It also has considerable experience on the defence side of defending securities cases.

[83]           As I described in Sharma v. Timminco Ltd., supra, where I choose Kim Orr in a carriage competition with Siskinds in a securities class action, Kim Orr has a fine pedigree as a class action firm and its senior lawyers have considerable experience and proficiency in all types of class actions. It was comparatively modest in its self-promotional material for the carriage motion, but I am aware that it is currently class counsel in substantial class actions involving claims of a similar nature to those in the case at bar.

[84]           Kim Orr has an association with Milberg, LLP, a prominent class action law firm in the United States. It has 75 attorneys, most of whom devote their practice to representing plaintiffs in complex litigations, including class and derivative actions. It has a large support staff, including investigators, a forensic accountant, financial analysts, legal assistants, litigation support analysts, shareholder services personnel, and information technology specialists.

[85]           Michael Spencer, who is a partner at Milberg and called to the bar in Ontario, offers counsel to Kim Orr.

[86]           Lead lawyers for Northwest v. Sino-Forest are James Orr, Won Kim, and Mr. Spencer.

2.      Retainer, Legal and Forensic Resources, and Investigations

Smith v. Sino-Forest
[87]           Following the release of the Muddy Waters Report, on June 6, 2011, Mr. Smith contacted Rochon Genova. Mr. Smith, who lost much of his investment fortune, was one of the victims of the wrongs allegedly committed by Sino-Forest. Rochon Genova accepted the retainer, and two days later, a notice of action was issued. The Statement of Claim in Smith v. Sino-Forest followed on July 8, 2011.

[88]           Following their retainer by Mr. Smith, Rochon Genova hired Mr. X (his name was not disclosed), as a consultant. Mr. X, who has an accounting background, can fluently read, write, and speak English, Cantonese, and Mandarin. He travelled to China from June 19 to July 3, 2011and again from October 31 to November 18, 2011. The purpose of the trips was to gather information about Sino-Forest’s subsidiaries, its customers, and its suppliers. While in China, Mr. X secured approximately 20,000 pages of filings by Sino-Forest with the provincial branches of China’s State Administration for Industry and Commerce (the “SAIC Files”).

[89]           In August 2011, Rochon Genova retained Froese Forensic Partners Ltd., a Toronto-based forensic accounting firm, to analyze the SAIC files.

[90]           Rochon Genova also retained HAIBU Attorneys at Law, a full service law firm based in Shenzhen, Guangdong Province, China, to provide a preliminary opinion about Sino-Forest’s alleged violations of Chinese accounting and taxation laws.

[91]           Exclusive of the carriage motion, Rochon Genova has already incurred approximately $350,000 in time and disbursements for the proposed class action.

Labourers v. Sino-Forest
[92]           On June 3, 2011, the day after the release of the Muddy Waters Report, Siskinds retained the Dacheng Law Firm in China to begin an investigation of the allegations contained in the report. Dacheng is the largest law firm in China with offices throughout China and Hong Kong and also offices in Los Angeles, New York, Paris, Singapore, and Taiwan.

[93]           On June 9, 2011, Guining Liu, a Sino-Forest shareholder, commenced an action in the Québec Superior Court on behalf of persons or entities domiciled in Québec who purchased shares and notes. Siskinds’ Québec affiliate office, Siskinds, Desmeules, avocats, is acting as class counsel in that action.

[94]           On June 20, 2011, Koskie Minsky, which had a long standing lawyer-client relationship with the Labourers’ Fund, was retained by it to recover its losses associated with the plummet in value of its holdings in Sino-Forest shares. Koskie Minsky issued a notice of action in a proposed class action with Labourers’ Fund as the proposed representative plaintiffs.

[95]           The June action, however, is not being pursued, and in July 2011, Labourers’ Fund was advised that Operating Engineers Fund, another pension fund, also had very significant losses, and the two funds decided to retain Koskie Minsky and Siskinds to commence a new action, which followed on July 20, 2011, by notice of action. The Statement of Claim in Labourers v. Sino-Forest was served in August, 2011.

[96]           Before commencing the new action, Koskie Minsky and Siskinds retained private investigators in Southeast Asia and received reports from them, along with information received from the Dacheng Law Firm. Koskie Minsky and Siskinds also received information from an unnamed expert in Suriname about the operations of Sino-Forest in Suriname and the role of Greenheart Group Ltd., which is a significant aspect of its Statement of Claim in Labourers v. Sino-Forest.

[97]           On November 4, 2011, Koskie Minsky and Siskinds served the Defendants in Labourers v. Sino-Forest with the notice of motion for an order granting leave to assert the causes of action under Part XXIII.l of the Ontario Securities Act.

[98]           On October 26, 2011, Robert Wong, who had lost a very large personal investment in Sino-Forest shares, retained Koskie Minsky and Siskinds to sue Sino-Forest for his losses, and the firms decided that he would become another representative plaintiff. 

[99]           On November 14, 2011, Koskie Minsky and Siskinds commenced Grant v. Sino-Forest Corp., which, as already noted above, they intend to consolidate with Labourers v. Sino-Forest.

[100]       Grant v. Sino-Forest names the same defendants as in Labourers v. Sino-Forest, except for the additional joinder of Messrs. Bowland, Poon, and West, and it also joins as defendants, BDO, and two additional underwriters, Banc of America and Credit Suisse Securities (USA).

[101]      Koskie Minsky and Siskinds state that Grant v. Sino-Forest was commenced out of an abundance of caution to ensure that certain prospectus and offering memorandum claims under the Ontario Securities Act, and under the equivalent legislation of the other Provinces, will not expire as being statute-barred.

[102]      Exclusive of the carriage motion, Koskie Minsky has already incurred approximately $350,000 in time and disbursements for the proposed class action,  and exclusive of the carriage motion, Siskinds has already incurred approximately $440,000 in time and disbursements for the proposed class action.

Northwest v. Sino-Forest

[103]      Immediately following the release of the Muddy Waters Report, Kim Orr and Milberg together began an investigation to determine whether an investor class action would be warranted. A joint press release on June 7, 2011, announced the investigation.

[104]      For the purposes of the carriage motion, apart from saying that their investigation included reviewing all the documents on SEDAR and the System for Electronic Disclosure for Insiders (SEDI), communicating with contacts in the financial industry, and looking into Sino-Forest’s officers, directors, auditors, underwriters and valuation experts, Kim Orr did not disclose the details of its investigation. It did indicate that it had hired a Chinese forensic investigator and financial analyst, a market and damage consulting firm, Canadian forensic accountants, and an investment and market analyst and that its investigations discovered valuable information.

[105]      Meanwhile, lawyers at Milberg contacted Bâtirente, which was one of its clients and also a Sino-Forest shareholder, and Won Kim of Kim Orr contacted Northwest, another Sino-Forest shareholder. Bâtirente already had a retainer with Milberg to monitor its investment portfolio on an ongoing basis to detect losses due to possible securities violations.

[106]      Northwest and Bâtirente agreed to retain Kim Orr to commence a class action, and on September 26, 2011, Kim Orr commenced Northwest v. Sino-Forest.

[107]      In October 2011, BC Investments contacted Kim Orr about the possibility of it becoming a plaintiff in the class proceeding commenced by Northwest and Bâtirente, and BC Investments decided to retain the firm and the plan is that BC Investments is to become another representative plaintiff.

[108]      Exclusive of the carriage motion, Kim Orr and Milberg have already incurred approximately $1,070,000 in time and disbursement for the proposed class action.

3.      Proposed Representative Plaintiffs

Smith v. Sino-Forest

[109]      In Smith v. Sino-Forest, the proposed representative plaintiffs are Douglas Smith and Frederick Collins.

[110]      Douglas Smith is a resident of Ontario, who acquired approximately 9,000 shares of Sino-Forest during the proposed class period. He is married, 48 years of age, and employed as a director of sales. He describes himself as a moderately sophisticated investor that invested in Sino-Forest based on his review of the publicly available information, including public reports and filings, press releases, and statements released by or on behalf of Sino-Forest. He lost $75,345, which was half of his investment fortune.

[111]      Frederick Collins is a resident of Nanaimo, British Columbia. He purchased shares in the primary market. His willingness to act as a representative plaintiff was announced during the reply argument of the second day of the carriage motion, and nothing was discussed about his background other than he is similar to Mr. Smith in being an individual investor. He was introduced to address a possible Ragoonanan problem in Smith v. Sino-Forest; namely, the absence of a plaintiff who purchased in the primary market, of which alleged problem I will have more to say about below.

Labourers v. Sino-Forest

[112]      In Labourers v. Sino-Forest, the proposed representative plaintiffs are: David Grant, Robert Wong, The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada (“Labourers’ Fund”), the Trustees of the International Union of Operating Engineers Local 793 Pension Plan for Operating Engineers in Ontario (“Operating Engineers Fund”), and Sjunde AP-Fonden.

[113]      David Grant is a resident of Alberta. On October 21, 2010, he purchased 100 Guaranteed Senior Notes of Sino-Forest at a price of $101.50 ($U.S.), which he continues to hold.

[114]      Robert Wong, a resident of Ontario, is an electrical engineer. He was born in China, and in addition to speaking English, he speaks fluent Cantonese. He was a substantial shareholder of Sino-Forest from July 2002 to June 2011. Before making his investment, he reviewed Sino-Forest’s Core Documents, and he also made his own investigations, including visiting Sino-Forest’s plantations in China in 2005, where he met a Sino-Forest vice-president.

[115]      Mr. Wong’s investment in Sino-Forest comprised much of his net worth. In September 2008, he owned 1.4 million Sino-Forest shares with a value of approximately $26.1 million. He purchased more shares in the December 2009 prospectus offering. Around the end of May 2011, he owned 518,700 shares, which, after the publication of the Muddy Waters Report, he sold on June 3, 2011 and June 10, 2011, for $2.8 million.

[116]      The Labourers’ Fund is a multi-employer pension fund for employees in the construction industry. It is registered with the Financial Services Commission in Ontario and has 52,100 members in Ontario, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. It is a long-time client of Koskie Minsky.

[117]      Labourers’ Fund manages more than $2.5 billion in assets. It has a fiduciary and statutory responsibility to invest pension monies on behalf of thousands of employees and pensioners in Ontario and in other provinces.

[118]      Labourer’s Fund acted as representative plaintiff in a U.S. class actions against Fortis, Pitney Bowes Inc., Synovus Financial Corp., and Medea Health Solutions, Inc. Those actions involved allegations of misrepresentation in the statements and filings of public issuers.

[119]      The Labourers’ Fund purchased Sino-Forest shares on the TSX during the class period, including 32,300 shares in a trade placed by Credit Suisse under a prospectus. Most of its purchases of Sino-Forest shares were made in the secondary market.

[120]      On June 1, 2011, the Labourers’ Fund held a total of 128,700 Sino-Forest shares with a market value of $2.3 million, and it also had an interest in pooled funds that had $1.4 million invested in Sino-Forest shares. On June 2 and 3, 2011, the Labourers’ Fund sold its holdings in Sino-Forest for a net recovery of $695,993.96. By June 30, 2011, the value of the Sino-Forest shares in the pooled funds was $291,811.

[121]      The Operating Engineers Fund is a multi-employer pension fund for employed operating engineers and apprentices in the construction industry. It is registered with the Financial Services Commission in Ontario, and it has 20,867 members. It is a long-time client of Koskie Minsky.

[122]      The Operating Engineers Fund manages $1.5 billion in assets. It has a fiduciary and statutory responsibility to invest pension monies on behalf of thousands of employees and pensions in Ontario and in other provinces.

[123]      The Operating Engineers Fund acquired shares of Sino-Forest on the TSX during the class period. The Operating Engineers Fund invested in Sino-Forest shares through four asset managers of a segregated fund. One of the managers purchased 42,000 Sino-Forest shares between February 1, 2011, and May 24, 2011, which had a market value of $764,820 at the close of trading on June 1, 2011. These shares were sold on June 21, 2011 for net $77,170.80. Another manager purchased 181,700 Sino-Forest shares between January 20, 2011 and June 1, 2011, which had a market value of $3.3 million at the close of trading on June 1, 2011. These shares were sold and the Operating Engineers Fund recovered $1.5 million. Another asset manager purchased 100,400 Sino-Forest shares between July 5, 2007 and May 26, 2011, which had a market value of $1.8 million at the close of trading on June 1, 2011. Many of these shares were sold in July and August, 2011, but the Operating Engineers Fund continues to hold approximately 37,350 shares. Between June 15, 2007 and June 9, 2011, the Operating Engineers Fund also purchased units of a pooled fund managed by TD that held Sino-Forest shares, and it continues to hold these units. The Operating Engineers Fund has incurred losses in excess of $5 million with respect to its investment in Sino-Forest shares.

[124]      Sjunde AP-Fonden is the Swedish Nation Pension Fund, and part of Sweden’s national pension system. It manages $15.3 billion in assets. It has acted as lead plaintiff in a large securities class action and a large stockholder class action in the United States.

[125]      In addition to retaining Koskie Minsky and Siskinds, Sjunde AP-Fonden also retained the American law firm Kessler Topaz to provide assistance, if necessary, to Koskie Minsky and Siskinds.

[126]      Sjunde AP-Fonden purchased Sino-Forest shares on the TSX from outside Canada between April 2010 and January 2011. It was holding 139,398 shares with a value of $2.5 million at the close of trading on June 1, 2011. It sold 43,095 shares for $188,829.36 in August 2011 and holds 93,303 shares.

[127]      Sjunde AP-Fonden is prepared to be representative plaintiff for a sub-class of non-Canadian purchasers of Sino-Forest shares who purchased shares in Canada from outside of Canada.

[128]      Messrs. Mancinelli, Gallagher, and Grottheim each deposed that Labourers’ Fund, the Operating Engineers Fund, and Sjunde AP-Fonden respectively sued because of their losses and because of their concerns that public markets remain healthy and transparent.

[129]      Although it does not seek to be a representative plaintiff, the Healthcare Employee Benefits Plans of Manitoba (“Healthcare Manitoba”) is a major class member that supports carriage being granted to Koskie Minsky and Siskinds, and its presence should also be mentioned here because it actively supports the appointment of the proposed representative plaintiffs in Labourers v. Sino-Forest.

[130]      Healthcare Manitoba provides pensions and other benefits to eligible healthcare employees and their families throughout Manitoba. It has 65,000 members. It is a long-time client of Koskie Minsky. It manages more than $3.9 billion in assets.

[131]      Healthcare Manitoba, invested in Sino-Forest shares that were purchased by one of its asset managers in the TSX secondary market. Between February and May, 2011, it purchased 305,200 shares with a book value of $6.7 million. On June 24, 2011, the shares were sold for net proceeds of $560,775.48.

Northwest v. Sino-Forest

[132]      In Northwest v. Sino-Forest, the proposed representative plaintiffs are: British Columbia Investment Management Corporation (“BC Investment”); Comité syndical national de retraite Bâtirente inc. (“Bâtirente”) and Northwest & Ethical Investments L.P. (“Northwest”).

[133]      BC Investment, which is incorporated under the British Columbia Public Sector Pension Plans Act, is owned by and is an agent of the Government of British Columbia.  It manages $86.9 billion in assets. Its investment activities help to finance the retirement benefits of more than 475,000 residents of British Columbia, including public service employees, healthcare workers, university teachers, and staff. Its investment activities also help to finance the WorkSafeBC insurance fund that covers approximately 2.3 million workers and over 200,000 employers in B.C., as well as, insurance funds for public service long term disability and credit union deposits.

[134]      BC Investment, through the funds it managed, owned 334,900 shares of Sino-Forest at the start of the Class Period, purchased 6.6 million shares during the Class Period, including 50,200 shares in the June 2009 offering and 54,800 shares in the December 2009 offering; sold 5 million shares during the Class Period; disposed of 371,628 shares after the end of the Class Period; and presently holds 1.5 million shares.

[135]      Bâtirente is a non-profit financial services firm initiated by the Confederation of National Trade Unions to establish and promote a workplace retirement system for affiliated unions and other organizations. It is registered as a financial services firm regulated in Quebec by the Autorité des marchés financiers under the Act Respecting the Distribution of Financial Products and Services, R.S.Q., chapter D-9.2. It has assets of about $850 million.

[136]      Bâtirente, through the funds it managed, did not own any shares of Sino-Forest before the class period, purchased 69,500 shares during the class period, sold 57,625 shares during the class period, and disposed of the rest of its shares after the end of the class period.

[137]      Northwest is an Ontario limited partnership, owned 50% by the Provincial Credit Unions Central and 50% by Federation des caisses Desjardin du Québec.  It is registered with the British Columbia Securities Commission as a portfolio manager, and it is registered with the OSC as a portfolio manager and as an investment funds manager. It manages about $5 billion in assets.

[138]      Northwest, through the funds it managed, did not own any shares of Sino-Forest before the class period, purchased 714,075 shares during the class period, including 245,400 shares in the December 2009 offering, sold 207,600 shares during the class period, and disposed of the rest of its shares after the end of the class period.

[139]      Kim Orr touts BC Investment, Bâtirente, and Northwest as candidates for representative plaintiff because they are sophisticated “activist shareholders” that are committed to ethical investing. There is evidence that they have all raised governance issues with Sino-Forest as well as other companies. Mr. Mountain of Northwest and Mr. Simard of Bâtirente are eager to be actively involved in the litigation against Sino-Forest.

4.      Funding

[140]      Koskie Minsky and Siskinds have approached Claims Funding International, and subject to court approval, Claims Funding International has agreed to indemnify the plaintiffs for an adverse costs award in return for a percentage of any recovery from the class action.

[141]      Koskie Minsky and Siskinds state that if the funding arrangement with Claims Funding International is refused, they will, in any event, proceed with the litigation and will indemnify the plaintiffs for any adverse costs award.

[142]      Similarly, Kim Orr has approached Bridgepoint Financial Services, which subject to court approval, has agreed to indemnify the plaintiffs for an adverse costs award in return for a percentage of any recovery in the class action. If this arrangement is not approved, Kim Orr intends to apply to the Class Proceedings Fund, which would be a more expensive approach to financing the class action.

[143]      Kim Orr states that if these funding arrangements are refused, it will, in any event, proceed with the litigation and it will indemnify the plaintiffs for any adverse costs award.

[144]      Rochon Genova did not mention in its factum whether it intends to apply to the Class Proceedings Fund on behalf of Messrs. Smith and Collins, but for the purposes of the discussion later about the carriage order, I will assume that this may be the case. I will also assume that Rochon Genova has agreed to indemnify Messrs. Smith and Collins for any adverse costs award should funding not be granted by the Fund.

5.      Conflicts of Interest

[145]      One of the qualifications for being a representative plaintiff is that the candidate does not have a conflict of interest in representing the class members and in bringing an action on their behalf. All of the candidates for representative plaintiff in the competing class actions depose that they have no conflicts of interest. Their opponents disagree.

[146]      Rochon Genova submits that there are inherent conflicts of interests in both Labourers v. Sino-Forest and in Northwest v. Sino-Forest because the representative plaintiffs bring actions on behalf of both shareholders and noteholders. Rochon Genova submits that these conflicts are exacerbated by the prospect of a Sino-Forest bankruptcy.

[147]      Relying on Casurina Ltd. Partnership v. Rio Algom Ltd. 2004 CanLII 30309 (ON CA), [2004] O.J. No. 177 (C.A.) at paras. 35-36, aff’g 2002 CanLII 9356 (ON SC), [2002] O.J. No. 3229 (S.C.J.), leave to appeal to the S.C.C. denied, [2004] S.C.C.A. No. 105 and Amaranth LLC. v. Counsel Corp., [2003] O.J. No. 4674 (S.C.J.), Rochon Genova submits that a class action by the bondholders is precluded by the pre-conditions in the bond instruments, but if it were to proceed, it might not be in the best interests of the bondholders, who might prefer to have Sino-Forest capable of carrying on business. Further still, Rochon Genova submits that, in any event, an action by the bondholders’ trustee may be the preferable way for the noteholders to sue on their notes. Further, Rochon Genova submits that if there is a bankruptcy, the bondholders may prefer to settle their claims in the context of the bankruptcy rather than being connected in a class action to the shareholder’s claims over which they would have priority in a bankruptcy.

[148]      Further still, Rochon Genova submits that a bankruptcy would bring another conflict of interest between bondholders and shareholders because under s. 50(14) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, and 5.1(2) of the Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36 the claims of creditors against directors that are based on misrepresentation or oppression may not be compromised through a plan or proposal. In contrast, Allen-Vanguard Corp., Re, 2011 ONSC 5017 (CanLII), 2011 ONSC 5017 (S.C.J.) at paras. 48-52 is authority that shareholders are not similarly protected, and, therefore, Rochon Genova submits that the noteholders would have a great deal more leverage in resolving claims against directors than would the shareholder members of the class in a class action.

[149]      Kim Orr denies that there is a conflict in the representative plaintiffs acting on behalf of both shareholders and bondholders. It submits that while boldholders may have an additional claim in contract against Sino-Forest for repayment of the debt outside of the class action, both shareholders and bondholders share a misrepresentation claim against Sino-Forest and there is no conflict in advancing the misrepresentation claim independent of the debt repayment claim.

[150]      Koskie Minsky and Siskinds also deny that there is any conflict in advancing claims by both bondholders and shareholders. They say that the class members are on common ground in advancing misrepresentation, tort, and the various statutory causes of action. Koskie Minsky and Siskinds add that if there was a conflict, then it is manageable because they have a representative plaintiff who was a bondholder, which is not the case for the representative plaintiffs in Northwest v. Sino-Forest. It submits that, if necessary, subclasses can be established to manage any conflicts of interest among class members.

[151]      Leaving the submitted shareholder and bondholder conflicts of interest, Rochon Genova submits that Labourers’ Fund has a conflict of interest because BDO Canada is its auditor. Rochon Genova submits that Koskie Minsky also has a conflict of interest because it and BDO Canada have worked together on a committee providing liaison between multi-employer pension plans and the Financial Services Commission of Ontario and have respectively provided services as auditor and legal counsel to the Union Benefits Alliance of Construction Trade Unions. Rochon Genova submits that it is telling that these conflicts were not disclosed and that BDO, which is an entity that is an international associate with BDO Canada was a late arrival as a defendant in Labourers v. Sino-Forest, although this can be explained by changes in the duration of the class period.

[152]      For their part, Koskie Minsky and Siskinds raise a different set of conflicts of interest. They submit that Northwest, Bâtirente, and BC Investments have a conflict of interest with the other class members who purchased Sino-Forest securities because of their role as investment managers.

[153]      Koskie Minsky and Siskinds’ argument is that as third party financial service providers, BC Investment, Bâtirente, and Northwest did not suffer losses themselves but rather passed the losses on to their clients. Further, Koskie Minsky and Siskinds submit that, in contrast to BC Investment, Bâtirente, and Northwest, their clients, Labourers’ Fund and Operating Engineers Fund, are acting as fiduciaries to recover losses that will affect their members’ retirements. This arguably makes Koskie Minsky and Siskinds better representative plaintiffs.

[154]      Further still, Koskie Minsky and Siskinds submit that the class members in Northwest v. Sino-Forest may question whether Northwest, Bâtirente, and BC Investments failed to properly evaluate the risks of investing in Sino-Forest. Koskie Minsky and Siskinds point out that the Superior Court of Québec in Comité syndical national de retraite Bâtirente inc. c. Société financière Manuvie, 2011 QCCS 3446 (CanLII) at paras. 111-119 disqualified Bâtirente as a representative plaintiff because there might be an issue about Bâtirente’s investment decisions. Thus, Koskie, Minsky and Siskinds attempt to change Northwest, Bâtirente, and BC Investments’ involvement in encouraging good corporate governance at Sino-Forest from a positive attribute into the failure to be aware of ongoing wrongdoing at Sino-Forest and a negative attribute for a proposed representative plaintiff.

6.      Definition of Class Membership

Smith v. Sino-Forest

[155]      In Smith v. Sino-Forest, the proposed class action is: (a) on  behalf of all persons   who  purchased  shares of Sino-Forest from May 17, 2004 to August  26,  2011  on  the TSX  or  other secondary market; and (b) on behalf of all  persons  who acquired  shares of Sino-Forest during the offering distribution period relating to Sino-Forest’s share prospectus offerings on June 1, 2009 and December 10, 2009 excluding the Defendants, members of the immediate families of the Individual Defendants, or the directors, officers, subsidiaries and affiliates of the corporate Defendants.

[156]      Both Koskie Minsky and Siskinds and Kim Orr challenge this class membership as inadequate for failing to include the bondholders who were allegedly harmed by the same misconduct that harmed the shareholders.

Labourers v. Sino-Forest

[157]      In Labourers v. Sino-Forest, the proposed class action is on behalf of all persons and entities wherever they may reside who acquired securities of Sino-Forest during the period from and including March 19, 2007 to and including June 2, 2011 either by primary distribution in Canada or an acquisition on the TSX or other secondary markets in Canada, other than the defendants, their past and present subsidiaries, affiliates, officers, directors, senior employees, partners, legal representatives, heirs, predecessors, successors and assigns, and any individual who is an immediate member of the family of an individual defendant.

[158]      The class membership definition in Labourers v. Sino-Forest includes non-Canadians who purchased shares or notes in Canada but excludes non-Canadians who purchased in a foreign marketplace.

[159]      Challenging this definition, Kim Orr submits that it is wrong in principle to exclude persons whose claims will involve the same facts as other class members and for whom it is arguable that Canadian courts may exercise jurisdiction and provide access to justice.

Northwest v. Sino-Forest,

[160]      In Northwest v. Sino-Forest, the proposed class action is on behalf of purchasers of shares or notes of Sino-Forest during the period from August 17, 2004 through June 2, 2011, except: Sino-Forest’s past and present subsidiaries and affiliates; the past and present officers and directors of Sino-Forest and its subsidiaries and affiliates; members of the immediate family of any excluded person; the legal representatives, heirs, successors, and assigns of any excluded person or entity; and any entity in which any excluded person or entity has or had a controlling interest.

[161]      Challenging this definition, Koskie Minsky and Siskinds submit that the proposed class in Northwest has no geographical limits and, therefore, will face jurisdictional and choice of law challenges that do not withstand a cost benefit analysis. It submits that Sino-Forest predominantly raised capital in Canadian capital markets and the vast majority of its securities were either acquired in Canada or on a Canadian market, and, in this context, including in the class non-residents who purchased securities outside of Canada risks undermining and delaying the claims of the great majority of proposed class members whose claims do not face such jurisdictional obstacles.

7.      Definition of Class Period

Smith v. Sino-Forest

[162]      In Smith v. Sino-Forest, the class period is May 17, 2004 to August 26, 2011. This class period starts with the release of Sino-Forest’s release of its 2003 Annual Information Form, which indicated the use of authorized intermediaries, and it ends on the day of the OSC’s cease-trade order.

[163]      For comparison purposes, it should be noted that this class period has the earliest start date and the latest finish date. Labourers v. Sino-Smith and Northwest v. Sino-Forest both use the end date of the release of the Muddy Waters Report.

[164]      In making comparisons, it is helpful to look at the chart found at Schedule A of this judgment.

[165]      Rochon Genova justifies its extended end date based on the argument that the Muddy Waters Report was a revelation of Sino-Forest’s misrepresentation but not a corrective statement that would end the causation of injuries because Sino-Forest and its officers denied the truth of the Muddy Waters Report.

[166]      Kim Orr’s criticizes the class definition in Smith v. Sino-Forest and submits that purchasers of shares or notes after the Muddy Waters Report was published do not have viable claims and ought not be included as class members.

[167]      Koskie Minsky and Siskinds’ submission is similar, and they regard the extended end date as problematic in raising the issues of whether there were corrective disclosures and of how Part XXIII.1 of the Ontario Securities Act should be interpreted.

Labourers v. Sino-Forest

[168]      In Labourers v. Sino-Forest, the class period is March 19, 2007 to June 2, 2011.

[169]      This class period starts with the date Sino-Forest’s 2006 financial results were announced, and it ends on the date of the publication of the Muddy Waters Report.

[170]      The March 19, 2007, commencement date was determined using a complex mathematical formula known as the “multi-trader trading model.” Using this model, Mr. Torchio estimates that 99.5% of Sino-Forest’s shares retained after June 2, 2011, had been purchased after the March 19, 2007 commencement date. Thus, practically speaking, there is almost nothing to be gained by an earlier start date for the class period.

[171]      The proposed class period covers two share offerings (June 2009 and December 2009). This class period does not include time before the coming into force of Part XXIII.1 of the Ontario Securities Act (December 31, 2005), and, thus, Koskie Minsky and Siskinds submit that this aspect of their definition avoids problems about the retroactive application, if any, of Part XXIII.1 of the Act.

[172]      For comparison purposes, the Labourers class period has the latest start date and shares the finish date used in the Northwest v. Sino-Forest action, which is sooner than the later date used in Smith v. Sino-Forest. It is the most compressed of the three definitions of a class period.

[173]      Based on Mr. Torchio’s opinion, Koskie Minsky and Siskinds submit that there are likely no damages arising from purchases made during a substantial portion of the class periods in Smith v. Sino-Forest and in Northwest v. Sino-Forest. Koskie Minsky and Siskinds submit that given that the average price of Sino’s shares was approximately $4.49 in the ten trading days after the Muddy Waters report, it is likely that any shareholder that acquired Sino-Forest shares for less than $4.49 suffered no damages, particularly under Part XXIII.1 of the Ontario Securities Act.

[174]      In part as a matter of principle, Kim Orr submits that Koskie Minsky and Siskinds’ approach to defining the class period is unsound because it excludes class members who, despite the mathematical modelling, may have genuine claims and are being denied any opportunity for access to justice. Kim Orr submits it is wrong in principle to abandon these potential class members.

[175]      Rochon Genova also submits that Koskie Minsky and Siskinds’ approach to defining the class period is wrong. It argues that Koskie Minsky and Siskinds’ reliance on a complex mathematical model to define class membership is arbitrary and unfair to share purchasers with similar claims to those claimants to be included as class members. Rochon Genova criticizes Koskie Minsky and Siskinds’ approach as being the condemned merits based approach to class definitions and for being the sin of excluding class members because they may ultimately not succeed after a successful common issues trial.

[176]      Relying on what I wrote in Fischer v. IG Investment Management Ltd., 2010 ONSC 296 (CanLII) at para. 157, Rochon Genova submits that the possible failure of an individual class member to establish an individual element of his or her claim such as causation or damages is not a reason to initially exclude him or her as a class member. Rochon Genova submits that the end date employed in Labourers v. Sino-Forest and Northwest v. Sino-Forest is wrong.

Northwest v. Sino-Forest

[177]      In Northwest v. Sino-Forest, the class period is August 17, 2004 to June 2, 2011.

[178]      This class period starts from the day Sino-Forest closed its public offering of long-term notes that were still outstanding at the end of the class period and ends on the date of the Muddy Waters Research Report. This period covers three share offerings (June 2007, June 2009, and December 2009) and six note offerings (August 2004, July 2008, July 2009, December 2009, February 2010, and October 2010).

[179]      For comparison purposes, the Northwest v. Sino-Forest class period begins 3 months later and ends three months sooner than the class period in Smith v. Sino-Forest. The Northwest v. Sino-Forest class period begins approximately two-and-a-half years earlier and ends at the same time as the class period in Labourers v. Sino-Forest.

[180]      Kim Orr submits that its start date of August 17, 2004 is satisfactory, because on that date, Sino-Forest shares were trading at $2.85, which is below the closing price of Sino-Forest shares on the TSX for the ten days after June 3, 2011 ($4.49), which indicates that share purchasers before August 2004 would not likely be able to claim loss or damages based on the public disclosures on June 2, 2011.

[181]      However, Koskie Minsky and Siskinds point out that Kim Orr’s submission actually provides partial support for the theory for a later start date (March 19, 2007) because, there is no logical reason to include in the class persons who purchased Sino-Forest shares between May 17, 2004, the start date of the Smith Action and December 1, 2005, because with the exception of one trading day (January 24, 2005), Sino-Forest’s shares never traded above $4.49 during that period.  

8.      Theory of the Case against the Defendants

Smith v. Sino-Forest

[182]      In Smith v. Sino-Forest, the theory of the case rests on the alleged non-arms’ length transfers between Sino-Forest and its subsidiaries and authorized intermediaries, that purported to be suppliers and customers. Rochon Genova’s investigations and analysis suggest that there are numerous non-arms length inter-company transfers by which Sino-Forest misappropriated investors’ funds, exaggerated Sino-Forest’s assets and revenues, and engaged in improper tax and accounting practices.

[183]      Mr. Smith alleges that Sino-Forest’s quarterly  interim  financial  statements,  audited  annual  financial  statements,  and  management’s discussion  and  analysis reports, which are Core Documents as defined under the Ontario Securities Act, misrepresented its revenues, the nature and scope of its business and operations, and the value and composition of its forestry holdings. He alleges that the Core Documents failed to disclose an unlawful scheme of fabricated sales transactions and the avoidance of tax and an unlawful scheme through which hundreds of millions of dollars in investors’ funds were misappropriated or vanished.

[184]      Mr. Smith submits that these misrepresentations and failures to disclose were also made in press releases and in public oral statements. He submits that Chan, Hyde, Horsley, Mak, Martin, Murray, and Wang authorized, permitted or acquiesced in the release of Core Documents and that Chan, Horsley, Martin, and Murray made the misrepresentations in public oral statements.

[185]      In Smith v. Sino-Forest, Mr. Smith (and Mr. Collins) brings different claims against different combinations of Defendants; visualize:

  •      misrepresentation in a prospectus under Part XXIII of the Ontario Securities Act, against all the Defendants
  •      subject to leave being granted, misrepresentation in secondary market disclosure under Part XXIII.1 of the Ontario Securities Act as against the defendants: Sino-Forest, Chan, Horsley, Hyde, Mak, Martin, Murray, Wang, BDO and E&Y
  •      negligent, reckless, or fraudulent misrepresentation against Sino-Forest, Chan, Horsley, Hyde, Mak, Martin, Murray, and Wang. This claim would appear to cover sales of shares in both the primary and secondary markets.
[186]      It is to be noted that Smith v. Sino-Forest does not make a claim on behalf of noteholders, and, as described and explained below, it joins the fewest number of defendants.

[187]      Smith also does not advance a claim on behalf of purchasers of shares through Sino-Forest’s prospectus offering of June 5, 2007, because of limitation period concerns associated with the absolute limitation period found in 138.14 of the Ontario Securities Act. See: Coulson v. Citigroup Global Markets Canada Inc., 2010 ONSC 1596 (CanLII) at paras. 98-100.

Labourers v. Sino-Forest

[188]      The theory of Labourers v. Sino-Forest is that Sino-Forest, along with its officers, directors, and certain of its professional advisors, falsely represented that its financial statements complied with GAAP, materially overstated the size and value of its forestry assets, and made false and incomplete representations regarding its tax liabilities, revenue recognition, and related party transactions.

[189]      The claims in Labourers v. Sino-Forest are largely limited to alleged misrepresentations in Core Documents as defined in the Ontario Securities Act and other Canadian securities legislation. Core Documents include prospectuses, annual information forms, information circulars, financial statements, management discussion & analysis, and material change reports.

[190]      The representative plaintiffs advance statutory claims and also common law claims that certain defendants breached a duty of care and committed the torts of negligent misrepresentation and negligence. There are unjust enrichment, conspiracy, and oppression remedy claims advanced against certain defendants.

[191]      In Labourers v. Sino-Forest, different combinations of representative plaintiffs advance different claims against different combinations of defendants; visualize:

  •      Labourers’ Fund and Mr. Wong, purchasers of shares in a primary market distribution, advance a statutory claim under Part XXIII of the Ontario Securities Act against Sino-Forest, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, E&Y, BDO, CIBC, Canaccord, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, TD and Pöyry
  •      Labourers’ Fund and Mr. Wong, purchasers of shares in a primary market distribution, advance a common law negligent misrepresentation claim against Sino-Forest, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, E&Y, BDO, CIBC, Canaccord, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, and TD based on the common misrepresentation that Sino-Forest’s financial statements complied with GAPP
  •      Labourers’ Fund and Mr. Wong, purchasers of shares in a primary market distribution, advance a common law negligence claim against Sino-Forest, Chan, Hyde, Horsley, Mak, Martin, Murray, Poon, Wang, E&Y, BDO, CIBC, Canaccord, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, TD and Pöyry
  •      Grant, who purchased bonds in a primary market distribution, advances a statutory claim under Part XXIII of the Ontario Securities Act against Sino-Forest
  •      Grant, who purchased bonds in a primary market distribution, advances a common law negligent misrepresentation claim against Sino-Forest, E&Y and BDO based on the common misrepresentation that Sino-Forest’s financial statements complied with GAPP
  •      Grant, who purchased bonds in a primary market distribution, advances a common law negligence claim against Sino-Forest, E&Y, BDO, Banc of America, Credit Suisse USA, and TD
  •      All the representative plaintiffs, subject to leave being granted, advance claims of  misrepresentation in secondary market disclosure under Part XXIII.1 of the Ontario Securities Act and, if necessary, equivalent provincial legislation. This claim is against Sino-Forest, Ardell, Bowland, Chan, Hyde, Horsley, Mak, Martin, Murray, Poon, Wang, West, E &Y, BDO, and Pöyry
  •      All of the representative plaintiffs, who purchased Sino-Forest securities in the secondary market, advance a common law negligent misrepresentation claim against all of the Defendants except the underwriters based on the common misrepresentation contained in the Core Documents that Sino-Forest’s financial statements complied with GAAP
  •      All the representative plaintiffs sue Sino-Forest, Chan, Horsley, and Poon for conspiracy. It is alleged that Sino-Forest, Chan, Horsley, and Poon conspired to inflate the price of Sino-Forest’s shares and bonds and to profit by their wrongful acts to enrich themselves by, among other things, issuing stock options in which the price was impermissibly low
  •      While it is not entirely clear from the Statement of Claim, it seems that all the representative plaintiffs sue Chan, Horsley, Mak, Martin, Murray, and Poon for unjust enrichment in selling shares to class members at artificially inflated prices
  •      While it is not entirely clear from the Statement of Claim, it seems that all the representative plaintiffs sue Sino-Forest for unjust enrichment for selling shares at artificially inflated prices
  •      While it is not entirely clear from the Statement of Claim, it seems that all the representative plaintiffs sue Banc of America, Canaccord, CIBC, Credit Suisse, Credit Suisse USA, Dundee, Maison, Merrill, RBC, Scotia, and TD for unjustly enriching themselves from their underwriters fees
  •      All the representative plaintiffs sue Sino-Forest, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, and Wang for an oppression remedy under the Canada Business Corporations Act
[192]      Koskie Minsky and Siskinds submit that Labourers v. Sino-Forest is more focused than Smith and Northwest because: (a) its class definition covers a shorter time period and is limited to securities acquired by Canadian residents or in Canadian markets; (b) the material documents are limited to Core Documents under securities legislation; (c) the named individual defendants are limited to directors and officers with statutory obligations to certify the accuracy of Sino-Forest’s public filings; and (d) the causes of action are tailored to distinguish between the claims of primary market purchasers and secondary market purchasers and so are less susceptible to motions to strike.

[193]      Koskie Minsky and Siskinds submit that save for background and context, little is gained in the rival actions by including claims based on non-Core Documents, which confront a higher threshold to establish liability under Part XXIII.1 of the Ontario Securities Act.

Northwest v. Sino-Forest

[194]      The Northwest v. Sino-Forest Statement of Claim focuses on an “Integrity Representation,” which is defined as: “the representation in substance that Sino-Forest’s overall reporting of its business operations and financial statements was fair, complete, accurate, and in conformity with international standards and the requirements of the Ontario Securities Act and National Instrument 51-102, and that its accounts of its growth and success could be trusted.”

[195]      The Northwest v. Sino-Forest Statement of Claim alleges that all Defendants made the Integrity Representation and that it was a false, misleading, or deceptive statement or omission. It is alleged that the false Integrity Representation caused the market decline following the June 2, 2011, disclosures, regardless of the truth or falsity of the particular allegations contained in the Muddy Waters Report.

[196]      In Northwest v. Sino-Forest, the representative plaintiffs advance statutory claims under Parts XXIII and XXIII.1 of the Ontario Securities Act and a collection of common law tort claims. Kim Orr submits that to the extent, if any, that the statutory claims do not provide complete remedies to class members, whether due to limitation periods, liability caps, or other limitations, the common law claims may provide coverage.

[197]      In Northwest v. Sino-Forest, the plaintiffs advance different claims against different combinations of defendants; visualize:

  • With respect to the June 2009 and December 2009 prospectus, a cause of action  for violation of Part XXIII of the Ontario Securities Act against Sino-Forest, the underwriter Defendants, the director Defendants, the Defendants who consented to disclosure in the prospectus and the Defendants who signed the prospectus
  • Negligent misrepresentation against all of the Defendants for disseminating material misrepresentations about Sino-Forest in breach of a duty to exercise appropriate care and diligence to ensure that the documents and statements disseminated to the public about Sino-Forest were complete, truthful, and accurate.
  • Fraudulent misrepresentation against all of the Defendants for acting knowingly and deliberately or with reckless disregard for the truth making misrepresentations in documents, statements, financial statements, prospectus, offering memoranda, and filings issued and disseminated to the investing public including Class Members.
  • Negligence against all the Defendants for a breach of a duty of care to ensure that Sino-Forest implemented and maintained adequate internal controls, procedures and policies to ensure that the company’s assets were protected and its activities conformed to all legal developments.
  • Negligence against the underwriter Defendants, the note distributor Defendants, the auditor Defendants, and the Pöyry Defendants for breach of a duty to the purchasers of Sino-Forest securities to perform their professional responsibilities in connection with Sino-Forest with appropriate care and diligence.
  • Subject to leave being granted, a cause of action for violation of Part XXIII.1 of the Ontario Securities Act against Sino-Forest, the auditor Defendants, the individual Defendants who were directors and officers of Sino-Forest at the time one or more of the pleaded material misrepresentations was made, and the Pöyry Defendants.
[198]      Kim Orr submits that Northwest v. Sino-Forest is more comprehensive than its rivals and does not avoid asserting claims on the grounds that they may take time to litigate, may not be assured of success, or may involve a small portion of the total potential class. It submits that its conception of Sino-Forest’s wrongdoing better accords with the factual reality and makes for a more viable claim than does Koskie Minsky and Siskinds’ focus on GAAP violations and Rochon Genova’s focus on the misrepresentations associated with the use of authorized intermediaries. It denies Koskie Minsky and Siskinds’ argument that it has pleaded overbroad tort claims.

[199]      Koskie Minsky and Siskinds submit that its conspiracy claim against a few defendants is focused and narrow, and it criticizes the broad fraud claim advanced in Northwest v. Sino-Forest against all the defendants as speculative, provocative, and unproductive.

[200]      Relying on McKenna v. Gammon Gold Inc., 2010 ONSC 1591 (CanLII) at para. 49; Corfax Benefits Systems Ltd. v. Fiducie Desjardins Inc., 1997 CanLII 12195 (ON SC), [1997] O.J. No. 5005 (Gen. Div.) at paras. 28-36; Hughes v. Sunbeam Corp. (Canada), 2000 CanLII 22685 (ON SC), [2000] O.J. No. 4595 (S.C.J.) at paras. 25 and 38; and Toronto-Dominion Bank v. Leigh Instruments Ltd. (Trustee of), 1998 CanLII 14806 (ON SC), [1998] O.J. No. 2637 (Gen. Div.) at para. 477, Koskie Minsky and Siskinds submit that the speculative fraud action in Northwest v. Sino-Forest is improper and would not advance the interests of class members. Further, the task of proving that each of some twenty defendants had a fraudulent intent, which will be vehemently denied by the defendants, and the costs sanction imposed for pleading and not providing fraud make the fraud claim a negative and not a positive feature of Northwest v. Sino-Forest.

9.      Joinder of Defendants

Smith v. Sino-Forest

[201]      In Smith v. Sino-Forest, the Defendants are: Sino-Forest; seven of its directors and officers; namely: Chan, Horsley, Hyde, Mak, Martin, Murray, and Wang; nine underwriters; namely, Canaccord, CIBC, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, and TD; and Sino-Forest’s two auditors during the Class Period, E &Y and BDO.

[202]      The Smith v. Sino-Forest Statement of Claim does not join Pöyry because Rochon Genova is of the view that the disclaimer clause in Pöyry’s reports likely insulates it from liability, and Rochon Genova believes that its joinder would be of marginal utility and an unnecessary complication. It submits that joining Pöyry would add unnecessary expense and delay to the litigation with little corresponding benefit because of its jurisdiction and its potential defences.

Labourers v. Sino-Forest

[203]      In Labourers v. Sino-Forest, the Defendants are the same as in Smith v. Sino-Forest with the additional joinder of Ardell, Bowland, Poon, West, Banc of America, Credit Suisse (USA), and Pöyry.

[204]      The Labourers v. Sino-Forest action does not join Chen, Ho, Hung, Ip, Maradin, Wong, Yeung, Zhao, Credit Suisse (USA), Haywood, Merrill-Fenner, Morgan and UBS, which are parties to Northwest v. Sino-Forest.

[205]      Koskie Minsky and Siskinds’ explanation for these non-joinders is that the activities of the underwriters added to Northwest v. Sino-Forest occurred outside of the class period in Labourers v. Sino-Forest and neither Lawrence nor Wong held a position with Sino-Forest during the proposed class period and the action against Lawrence’s Estate is probably statute-barred. (See Waschkowski v. Hopkinson Estate, 2000 CanLII 5646 (ON CA), [2000] O.J. No. 470 (C.A.).)

[206]      Wong left Sino-Forest before Part XXIII.1 of the Ontario Securities Act came into force, and Koskie Minsky and Siskinds submit that proving causation against Wong will be difficult in light of the numerous alleged misrepresentations since his departure. Moreover, the claim against him is likely statute-barred.

[207]      Koskie Minsky and Siskinds submit that Chen, Maradin, and Zhao did not have statutory duties and allegations that they owed common law duties will just lead to motions to strike that hinder the progress of an action.

[208]      Further, Koskie Minsky and Siskinds submit that it is not advisable to assert claims of fraud against all defendants, which pleading may raise issues for insurers that potentially put available coverage and thus collection for plaintiffs at risk.

[209]      Kim Orr submits that it is a mistake in Labourers v. Sino-Forest, which is connected to the late start date for the class period, which Kim Orr also regards as a mistake, that those underwriters that may be liable and who may have insurance to indemnify them for their liability, have been left out of Labourers v. Sino-Forest.

Northwest v. Sino-Forest

[210]      In Northwest v. Sino-Forest, with one exception, the defendants are the same as in Labourers v. Sino-Forest with the additional joinder of various officers of Sino-Forest; namely: Chen, Ho, Hung, Ip, The Estate of John Lawrence, Maradin, Wong, Yeung, and Zhao; the joinder of Pöyry Forest and JP Management; and the joinder of more underwriters; namely: Haywood, Merrill- Fenner, Morgan, and UBS.

[211]      The one exception where Northwest v. Sino-Forest does not join a defendant found in Labourers v. Sino-Forest is Banc of America.

[212]      Kim Orr’s submits that its joinder of all defendants who might arguably bear some responsibility for the loss is a positive feature of its proposed class action because the precarious financial situation of Sino-Forest makes it in the best interests of the class members that they be provided access to all appropriate routes to compensation. It strongly denies Koskie Minsky and Siskinds’ allegation that Northwest v. Sino-Forest   takes a “shot-gun” and injudicious approach by joining defendants that will just complicate matters and increase costs and delay.

[213]      Kim Orr submits that Rochon Genova has no good reason for not adding Pöyry, Pöyry Forest, and JP Management as defendants to Smith v. Sino-Forest and that Koskie Minsky and Siskinds have no good reason in Labourers v. Sino-Forest for suing Pöyry but not also suing its associated companies, all of whom are exposed to liability and may be sources of compensation for class members.

[214]      While not putting it in my blunt terms, Kim Orr submits, in effect, that Koskie Minsky and Siskinds’ omission of the additional defendants is just laziness under the guise of feigning a concern for avoiding delay and unnecessarily complicating an already complex proceeding.

10.  Causes of Action

Smith v. Sino-Forest

[215]      In Smith v. Sino-Forest, the causes of action advanced by Mr. Smith on behalf of the class members are:

  •      misrepresentation in a prospectus under Part XXIII of the Ontario Securities Act
  •      negligent, reckless, or fraudulent misrepresentation
  •      subject to leave being granted, misrepresentation in secondary market disclosure under Part XXIII.1 of the Ontario Securities Act and, if necessary, equivalent provincial legislation

Labourers v. Sino-Forest

[216]      In Labourers v. Sino-Forest, the causes of action advanced by various combinations of plaintiffs against various combinations of defendants are:

  •      misrepresentation in a prospectus under Part XXIII of the Ontario Securities Act
  •      negligent misrepresentation
  •      negligence
  •      subject to leave being granted misrepresentation in secondary market disclosure under Part XXIII.1 of the Ontario Securities Act and, if necessary, equivalent provincial legislation
  •      conspiracy
  •      unjust enrichment
  •      oppression remedy.
[217]      Kim Orr submits that the unjust enrichment claims and oppression remedy claims seemed to be based on and add little to the misrepresentation causes of action. It concedes that the conspiracy action may be a tenable claim but submits that its connection to the disclosure issues that comprise the nucleus of the litigation is unclear.

Northwest v. Sino-Forest

[218]      In Northwest v. Sino-Forest, the causes of action are:

  •      misrepresentation in a prospectus in violation of Part XXIII the Ontario Securities Act
  •      misrepresentation in an offering memorandum in violation of Part XXIII the Ontario Securities Act
  •      negligent misrepresentation
  •      fraudulent misrepresentation
  •      negligence
  •      subject to leave being granted misrepresentation in secondary market disclosure under Part XXIII.1 of the Ontario Securities Act and, if necessary, equivalent provincial legislation
[219]      The following chart is helpful in comparing and contrasting the joinder of various causes of action and the joinder of defendants in Smith v. Sino-Forest, Labourers v. Sino-Forest and Northwest v. Sino-Forest.

Cause of Action Smith v. Sino-Forest, Labourers v. Sino-Forest, Northwest v. Sino-Forest,
Part XXIII of the Ontario Securities Act – primary market shares

 

Sino-Forest, Chan, Horsley, Hyde, Mak,

Martin, Murray, Wang,

Canaccord, CIBC, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, TD, E&Y, BDO

Sino-Forest,  Chan, Horsley, Hyde, Mak, Martin, Murray, Poon,

Wang, Canaccord, CIBC, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, TD, E&Y, BDO, Pöyry

Sino-Forest,  Ardell,  Bowland, Chan Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Canaccord, CIBC Credit Suisse, Credit Suisse  (USA), Dundee, Haywood, Maison, Merrill, Merrill-Fenner

Morgan, RBC,Scotia,

TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

[for June 2009 and Dec. 2009 prospectus]
Part XXIII of the Ontario Securities Act – primary market  bonds   Sino-Forest

[two bond issues]
Sino-Forest

[six bond issues]
Negligent misrepresentation –   primary market shares Sino-Forest,  Chan, Horsley, Hyde, Mak,

Martin, Murray, Wang,

E&Y, BDO

Sino-Forest, Chan, Horsley, Hyde, Mak,

Martin, Murray, Poon,

Wang, Canaccord, CIBC, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, TD, E&Y, BDO, Pöyry

Sino-Forest,  Ardell, Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate, Maradin, Wong,Yeung, Zhao, Canaccord, CIBC, Credit Suisse, Credit Suisse (USA), Dundee, Haywood, Maison, Merrill, Merrill-Fenner,

Morgan, RBC, Scotia,

TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest. JP Management,

Negligent misrepresentation – primary market bonds   Sino-Forest, E&Y, BDO Sino-Forest, Ardell, Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip,  Lawrence Estate, Maradin, Wong, Yeung, Zhao,  Canaccord, CIBC,

Credit Suisse, Credit Suisse (USA), Dundee,

Haywood, Maison,

Merrill, Merrill-Fenner,

Morgan, RBC, Scotia,

TD, UBS, E&Y,

BDO, Pöyry, Pöyry Forest, JP Management

Negligence – primary market shares   Sino-Forest, Chan, Hyde, Horsley, Mak, Martin, Murray, Poon, Wang, E &Y, BDO, CIBC, Canaccord, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia,TD, Pöyry, [see negligence, professional negligence]
Negligence – primary market bonds   Sino-Forest, E&Y,

BDO, Banc of  America, Credit Suisse USA, TD

[See negligence, professional negligence]
Negligence     Sino-Forest, Ardell,

Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate,  Maradin, Wong, Yeung, Zhao, Canaccord, CIBC,

Credit Suisse, Credit Suisse (USA), Dundee,

Haywood, Maison, Merrill, Merrill-Fenner,

Morgan, RBC, Scotia,

TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

Professional Negligence     Canaccord, CIBC, Credit Suisse, Credit Suisse (USA), Dundee, Haywood, Maison,

Merrill, Merrill-Fenner,

Morgan, RBC, Scotia,

TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

Part XXIII.1 of the Ontario Securities Act –  secondary market shares Sino-Forest, Chan,

Horsley, Hyde, Mak,

Martin, Murray, Wang,

E&Y, BDO

Sino-Forest, Ardell,

Bowland, Chan, Hyde ,

Horsley, Mak, Martin,

Murray, Poon , Wang,

West, E &Y,  BDO,

Pöyry

Sino-Forest, Ardell, Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate, Maradin, Wong, Yeung, Zhao, Canaccord,

CIBC, Credit Suisse,

Credit Suisse (USA), Dundee, Haywood, Maison, Merrill, Merrill-Fenner, Morgan, RBC,Scotia, TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

Part XXIII.1 of the Ontario Securities Act – secondary market bonds   Sino-Forest, Ardell,

Bowland, Chan, Hyde ,

Horsley, Mak, Martin,

Murray, Poon, Wang,

West, E &Y, BDO,  Pöyry

Sino-Forest, Ardell, Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate, Maradin, Wong, Yeung, Zhao, Canaccord, CIBC,

Credit Suisse, Credit Suisse (USA), Dundee,

Haywood, Maison, Merrill, Merrill-Fenner,

Morgan, RBC, Scotia,

TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

Negligent misrepresentation –  secondary market shares Sino-Forest, Chan, Horsley, Hyde, Mak,

Martin, Murray, Wang,

E&Y, BDO

Sino-Forest, Ardell,

Bowland, Chan, Horsley,

Hyde, Mak, Martin,

Murray, Poon, Wang,

E&Y, BDO, Pöyry

Sino-Forest, Ardell,

Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip,  Lawrence Estate, Maradin, Wong, Yeung, Zhao, Canaccord, CIBC,

Credit Suisse, Credit Suisse (USA), Dundee,

Haywood, Maison,

Merrill, Merrill-Fenner,

Morgan, RBC, Scotia, TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

Negligent misrepresentation – secondary market bonds   Sino-Forest, Ardell,  Bowland, Chan, Horsley,

Hyde, Mak, Martin, Murray, Poon, Wang,

E&Y, BDO, Pöyry

Sino-Forest,  Ardell,

Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate, Maradin, Wong, Yeung, Zhao, Canaccord, CIBC,

Credit Suisse, Credit Suisse (USA), Dundee,

Haywood, Maison, Merrill, Merrill-Fenner,

Morgan, RBC, Scotia,

TD, UBS, E&Y,

BDO, Pöyry, Pöyry Forest, JP Management

Negligence –  secondary market shares   Sino-Forest, Chan, Horsley, Hyde, Mak,

Martin, Murray, Poon,

Wang, Canaccord, CIBC, Credit Suisse, Dundee, Maison, Merrill, RBC,

Scotia, TD, E&Y, BDO, Pöyry

[see negligence, professional negligence]
Conspiracy   Sino-Forest, Chan, Horsley, Poon,  
Fraudulent Misrepresentation  – Bonds, shares     Sino-Forest, Ardell,

Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate, Maradin, Wong, Yeung, Zhao, Canaccord, CIBC, Credit Suisse, Credit Suisse (USA), Dundee, Haywood, Maison, Merrill, Merrill-Fenner, Morgan, RBC, Scotia, TD,UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management

Unjust Enrichment   Chan, Horsley, Mak,

Martin, Murray, Poon,

 
Unjust Enrichment   Sino-Forest,  
Unjust Enrichment   Banc of America, Canaccord, CIBC, Credit Suisse, Credit Suisse  USA, Dundee, Maison,

Merrill, RBC, Scotia,

TD

 
Oppression Remedy   Sino-Forest, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon,

Wang

 

11.  The Plaintiff and Defendant Correlation

[220]      In class actions in Ontario, for every named defendant there must be a named plaintiff with a cause of action against that defendant: Ragoonanan v. Imperial Tobacco Canada Ltd., 2000 CanLII 22719 (ON SC), [2000] O.J. No. 4597 (S.C.J.) at para. 55 (S.C.J.); Hughes v. Sunbeam Corp. (Canada) (2002), 2002 CanLII 45051 (ON CA), 61 O.R. (3d) 433 (C.A.) at para. 18.

[221]      As an application of the Ragoonanan rule, a purchaser in the secondary market cannot be the representative plaintiff for a class member who purchased in the primary market: Menegon v. Philip Services Corp., 2001 CanLII 28396 (ON SC), [2001] O.J. No. 5547 (S.C.J.) at paras. 28-30 aff’d 2003 CanLII 36468 (ON CA), [2003] O.J. No. 8 (C.A.).

[222]      Where the class includes non-resident class members, they must be represented by a representative plaintiff that is a non-resident: McKenna v. Gammon Gold Inc., 2010 ONSC 1591 (CanLII) at paras. 109, 117 and 184; Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 2005 CanLII 3360 (ON CA), 74 O.R. (3d) 321 at para. 30 (C.A.).

[223]      Koskie Minsky and Siskinds submit that Labourers v. Sino-Forest has no Ragoonanan problems. However, they submit that the other actions have problems. For example, until Mr. Collins volunteered, there was no representative plaintiff in Smith v. Sino-Forest who had purchased shares in the primary market, and at this juncture, it is not clear that Mr. Collins purchased in all of the primary market distributions. Mr. Smith and Mr. Collins may have timing-of-purchase issues. Mr. Smith made purchases during periods when some of the Defendants were not involved; viz. BDO, Canaccord CIBC, Credit Suisse, Dundee, Maison, Merrill, RBC, Scotia, and TD.

[224]      Koskie Minsky and Siskinds submit that none of the representative plaintiffs in Northwest v. Sino-Forest purchased notes in the primary market for the 2007 prospectus offering and that the plaintiffs in Northwest may have timing issues with respect to their claims against Wong, Lawrence, JP Management, UBS, Haywood and Morgan.

[225]      Rochon Genova’s and Kim Orr’s response is that there are no Ragoonanan problems or no irremediable Ragoonanan problems.

12.  Prospects of Certification

[226]      Koskie Minsky and Siskinds framed part of their argument in favour of their being selected for carriage in terms of the comparative prospects of certification of the rival actions. They submitted that Labourers v. Sino-Forest was carefully designed to avoid the typical road blocks placed by defendants on the route to certification and to avoid inefficiencies and unproductive claims or claims that on a cost-benefit analysis would not be in the interests of the class to pursue. One of the typical roadblocks that they referred to was challenges to the jurisdiction of the Ontario Court over foreign class members and foreign defendants who have not attorned to the Ontario Superior Court of Justice’s territorial jurisdiction.

[227]      Koskie Minsky and Siskinds submitted that their representative plaintiffs focus their claims on a single misrepresentation to avoid the pitfalls of seeking to certify a negligent misrepresentation claim with multiple misrepresentations over a long period of time. Such a claim apparently falls into a pit because it is often not certified. Koskie Minsky and Siskinds say it is better to craft a claim that has higher prospects of certification and leave some claims behind. They submit that the Supreme Court of Canada accepted that a representative plaintiff is entitled to restrict their causes of action to make their claims more amenable to class proceedings: Rumley v. British Columbia, 2001 SCC 69 (CanLII), [2001] 3 S.C.R. 184 at para. 30.

[228]      Although Smith v. Sino-Forest is even more focused that Labourers v. Sino­-Forest, Koskie Minsky and Siskinds still submit that their approach is better because Smith v. Sino-Forest goes too far in cutting out the bondholders’ claims and then loses focus by extending its claims beyond the release of the Muddy Waters Report.

[229]      In any event, Koskie Minsky and Siskinds submit that Labourers v. Sino-Forest is better because the named plaintiffs are able to advance statutory and common law claims against all of the named defendants, which arguably is not the case for the plaintiffs in the other actions, who may have Ragoonanan problems or no tenable claims against some of the named defendants. Further, Labourers arguably is better because of a more focussed approach to maximize class recovery while avoiding the costs and delays inevitably linked with motions to strike.

[230]      Kim Orr submits that its more comprehensive approach, where there are more defendant parties and expansive tort claims, is preferable to Labourers v. Sino-Forest and Smith v. Sino-Forest. Kim Orr submits that it does not shirk asserting claims because they may be difficult to litigate and it does not abandon class members who may not be assured of success or who comprise a small portion of the class.

[231]      Kim Orr submits that Northwest v. Sino-Forest is comprehensive and also cohesive and corresponds to the factual reality. It submits that the theories of the competing actions do not capture the wrongdoing at Sino-Forest for which many are culpable and who should be held responsible. It submits that its approach will meet the challenges of certification and yield an optimum recovery for the class.

[232]         Rochon Genova submits that Smith v. Sino-Forest is much more cohesive that the other actions. It submits that the more expansive class definitions and causes of action in Labourers v. Sino-Forest and Northwest v. Sino-Forest will present serious difficulties relating to manageability, preferability, and potential conflicts of interest amongst class members that are not present in Smith v. Sino-Forest. Rochon Genova submits that it has developed a solid, straightforward theory of the case and made a great deal of progress in unearthing proof of Sino-Forest’s wrongdoing.

G.               CARRIAGE ORDER

1.      Introduction

[233]      With the explanation that follows, I stay Smith v. Sino-Forest and Northwest v. Sino-Forest, and I award carriage to Koskie Minsky and Siskinds in Labourers v. Sino-Forest. In the race for carriage of an action against Sino-Forest, I would have ranked Rochon Genova second and Kim Orr third.

[234]      This is not an easy decision to make because class members would probably be well served by any of the rival law firms. Success in a carriage motion does not determine which is the best law firm, it determines that having regard to the interests of the plaintiffs and class members, to what is fair to the defendants, and to the policies that underlie the class actions regime, there is a constellation of factors that favours selecting one firm or group of firms as the best choice for a particular class action.

[235]      Having regard to the constellation of factors, in the circumstances of this case, several factors are neutral or non-determinative of the choice for carriage. In this group are: (a) attributes of class counsel; (b) retainer, legal, and forensic resources; (c) funding; (d) conflicts of interest; and (e) the plaintiff and defendant correlation.

[236]      In the case at bar, the determinative factors are: definition of class membership, definition of class period, theory of the case, causes of action, joinder of defendants, and prospects of certification.

[237]      Of the determinative factors, the attributes of the representative plaintiffs is a standalone factor. The other determinative factors are interrelated and concern the rival conceptualizations of what kind of class action would best serve the class members’ need for access to justice and the policies of fairness to defendants, behaviour modification, and judicial economy.

[238]      Below, I will first discuss the neutral or non-determinative factors. Then, I will discuss the determinative factors. After discussing the attributes of the representative plaintiffs, I will discuss the related factors in two groups.  One group of related factors is about class membership, and the second group of factors is about the claims against the defendants.

2.      Neutral or Non-Determinative Factors

(a)   Attributes of Class Counsel

[239]      In the circumstances of the cases at bar, the attributes of the competing law firms along with their associations with prestigious and prominent American class action firms is not determinative of carriage, since there is little difference among the rivals about their suitability for bringing a proposed class action against Sino-Forest.

[240]      With respect to the attributes of the law firms, although one might have thought that Mr. Spencer’s call to the bar would diminish the risk, Koskie and Minsky and Siskinds, particularly Siskinds, raised a question about whether Milberg might cross the line of what legal services a foreign law firm may provide to the Ontario lawyers who are the lawyers of record, and Siskinds alluded to the spectre of violations of the rules of professional conduct and perhaps the evil of champerty and maintenance. It suggested that it was unfair to class members to have to bear this risk associated with the involvement of Milberg.

[241]      However, at this juncture, I have no reason to believe that any of the competing law firms, all of which have associations with notable American class action firms, will shirk their responsibilities to control the litigation and not to condone breaches of the rules of professional conduct or tortious conduct.

(b)   Retainer, Legal, and Forensic Resources

[242]      The circumstances of the retainers and the initiative shown by the law firms and their efforts and resources expended by them are also not determinative factors in deciding the carriage motions in the case at bar, although it is an enormous shame that it may not be possible to share the fruits of these efforts once carriage is granted to one action and not the others.

[243]      As I have already noted above, the aggregate expenditure to develop the tactical and strategic plans for litigation not including the costs of preparing for the carriage motion are approximately $2 million. It seems that this effort by the respective law firms has been fruitful and productive. All of the law firms claim that their respective efforts have yielded valuable information to advance a claim against Sino-Forest and others.

[244]      All of the law firms were quickly out of the starting blocks to initiate investigations about the prospects and merits of a class action against Sino-Forest. For different reasonable reasons, the statements of claim were filed at different times.

[245]      In the case at bar, I do not regard the priority of the commencement of the actions as a meaningful factor, given that from the  publication of the Muddy Waters Report, all the firms responded immediately to explore the merits of a class action and given that all the firms plan to amend their original pleadings that commenced the actions. In any event, I do not think that a carriage motion should be regarded as some sort of take home exam where the competing law firms have a deadline for delivering a statement of claim, else marks be deducted.

(c)   Funding

[246]      In my opinion, another non-determinative factor is the circumstances that: (a) the representative plaintiffs in Labourers v. Sino-Forest may apply for court approval for third-party funding; (b) the plaintiffs in Northwest v. Sino-Forest may apply for court approval for third-party funding or they may apply to the Class Proceedings Fund to be protected from an adverse costs award; (c) Messrs. Smith and Collins in Smith v. Sino-Forest may apply to the Class Proceedings Fund to be protected from an adverse costs award; and (d) each of the law firms have respectively undertaken with their respective clients to indemnify them from an adverse costs award.

[247]      In the future, the court or the Ontario Law Foundation may have to deal with the funding requests, but for present purposes, I do not see how these prospects should make a difference to deciding carriage, although I will have something more to say below about the significance of the state of affairs that clients with the resources of Labourers’ Fund, Operating Engineers Fund, Sjunde AP-Fonden, BC Investment, Bâtirente, and Northwest would seek an indemnity from their respective class counsel.

[248]      In any event, in my opinion, standing alone, the funding situation is not a determinative factor to carriage, although it may be relevant to other factors that are discussed below.

(d)   Conflicts of Interest

[249]      In the circumstances of the case at bar, I also do not regard conflicts of interest as a determinative factor.

[250]      I do not see how the fact that Northwest, Bâtirente, and BC Investments made their investments on behalf of others and allegedly suffered no losses themselves creates a conflict of interest. It appears to me that they have the same fiduciary responsibilities to their members as do Labourers’ Fund, Operating Engineers Fund, Sjunde AP-Fonden, and Healthcare Manitoba.

[251]      Northwest, Bâtirente, and BC Investments were the investors in the securities of Sino-Forest and although there may be equitable or beneficial owners, under the common law, they suffered the losses, just like the other investors in Sino-Forest securities suffered losses. The fact that Northwest, Bâtirente, and BC Investments held the investments in trust for their members does not change the reality that they suffered the losses.

[252]      It is alleged that Northwest, Bâtirente, and BC Investments, who were involved in corporate governance matters associated with Sino-Forest, failed to properly evaluate the risks of investing in Sino-Forest. Based on these allegations, it is submitted that they have a conflict of interest. I disagree.

[253]      Having regard to the main allegation being that Sino-Forest was engaged in a corporate shell game that deceived everyone, it strikes me that it is almost a spuriously speculative allegation to blame another victim as being at fault. However, even if the allegation is true, the other class members have no claim against Northwest, Bâtirente, and BC Investments. If there were a claim, it would be by the members of Northwest, Bâtirente, and BC Investments, who are not members of the class suing Sino-Forest. The actual class members have no claim against Northwest, Bâtirente, and BC Investments but have a common interest in pursuing Sino-Forest and the other defendants.

[254]      Further, it is arguable that Koskie Minsky and Siskinds are incorrect in suggesting that in Comité syndical national de retraite Bâtirente inc. c. Société financière Manuvie, 2011 QCCS 3446 (CanLII), the Superior Court of Québec disqualified Bâtirente as a representative plaintiff because there might be an issue about Bâtirente’s investment decisions.

[255]      It appears to me that Justice Soldevida did not appoint Bâtirente as a representative plaintiff for a different reason. The action in Québec was a class action. There were some similarities to the case at bar, insofar as it was an action against a corporation, Manulife, and its officers and directors for misrepresentations and failure to fulfill disclosure obligations under securities law. In that action, the personal knowledge of the investors was a factor in their claims against Manulife, and Justice Soldevida felt that sophisticated investors, like Bâtirente, could not be treated on the same footing as the average investor. It was in that context that she concluded that there was an appearance of a conflict of interest between Bâtirente and the class members.

[256]      In the case at bar, however, particularly for the statutory claims where reliance is presumed, there is no reason to differentiate the average investors from the sophisticated ones. I also do not see how the difference between sophisticated and average investors would matter except perhaps at individual issues trials, where reasonable reliance might be an issue, if the matter ever gets that far.

[257]      Another alleged conflict concerns the facts that BDO Canada, which is not a defendant, is the auditor of Labourers’ Fund, and Koskie Minsky and BDO Canada have worked together on several matters. These circumstances are not conflicts of interest. There is no reason to think that Labourers’ Fund and Koskie Minsky are going to pull their punches against BDO or would have any reason to do so.

[258]      Finally, turning to the major alleged conflict between the bondholders and the shareholders, speaking generally, the alleged conflicts of interest between the bondholders that invested in Sino-Forest and the shareholders that invested in Sino-Forest arise because the bondholders have a cause of action in debt in addition to their causes of action based in tort or statutory misrepresentation claims, while, in contrast, the shareholders have only statutory and common law claims based in misrepresentation.

[259]      There is, however, within the context of the class action, no conflict of interest. In the class action, only the misrepresentation claims are being advanced, and there is no conflict between the bondholders and the shareholders in advancing these claims. Both the bondholders and the shareholders seek to prove that they were deceived in purchasing or holding on to their Sino-Forest securities. That the Defendants may have defences associated with the terms of the bonds is a problem for the bondholders but it does not place them in a conflict with shareholders not confronted with those special defences.

[260]      Assuming that the bondholders and shareholders succeed or are offered a settlement, there might be a disagreement between them about how the judgment or settlement proceeds should be distributed, but that conflict, which at this juncture is speculative, can be addressed now or later by constituting the bondholders as a subclass and by the court’s supervisory role in approving settlements under the Class Proceedings Act, 1992.

[261]      If there are bondholders that wish only to pursue their debt claims or who wish not to pursue any claim against Sino-Force or who wish to have the bond trustee pursue only the debt claims, these bondholders may opt out of the class proceeding assuming it is certified.

[262]      If there is a bankruptcy of Sino-Forest, then in the bankruptcy, the position of the shareholders as owners of equity is different than the position of the bondholders as secured creditors, but that is a natural course of a bankruptcy. That there are creditors’ priorities, outside of the class action, does not mean that, within the class action, where the bondholders and the shareholders both claim damages, i.e., unsecured claims, there is a conflict of interest.

[263]      The alleged conflict in the case at bar is different from the genuine conflict of interest that was identified in Settington v. Merck Frost Canada Ltd., [2006] O.J. No. 379 (S.C.J.), where, for several reasons, the Merchant Law Firm was not granted carriage or permitted to be part of the consortium granted carriage in a pharmaceutical products liability class action against Merck.

[264]      In Settington, one ground for disqualification was that the Merchant Law firm was counsel in a securities class action for different plaintiffs suing Merck for an unsecured claim. If the securities class action claim was successful, then the prospects of an unsecured recovery in the products liability class action might be imperiled. In the case at bar, however, within the class action, the bondholders are not pursuing a different cause of action from the shareholders; both are unsecured creditors for the purposes of their damages’ claims arising from misrepresentation. If, in other proceedings, the bondholders or their trustee successfully pursue recovery in debt, then the threat to the prospects of recovery by the shareholders arises in the normal way that debt instruments have priority over equity instruments, which is a normal risk for shareholders.

[265]      Put shortly, although the analysis may not be easy, there are no conflicts of interest between the bondholders and the shareholders within the class action that cannot be handled by establishing a subclass for bondholders at the time of certification or at the time a settlement is contemplated.

(e)   The Plaintiff and Defendant Correlation

[266]      In Ragoonanan v. Imperial Tobacco Canada Ltd., (2000), 2000 CanLII 22719 (ON SC), 51 O.R. (3d) 603 (S.C.J.), in a proposed products liability class action, Mr. Ragoonanan sued Imperial Tobacco, Rothmans, and JTI-MacDonald, all cigarette manufacturers. He alleged that the manufacturers had negligently designed their cigarettes by failing to make them “fire safe.” Mr. Ragoonanan’s particular claim was against Imperial Tobacco, which was the manufacturer of the cigarette that allegedly caused harm to him when it was the cause of a fire at Mr. Ragoonanan’s home. Mr. Ragoonanan did not have a claim against Rothmans or JTI-MacDonald.

[267]      In Ragoonanan, Justice Cumming established the principle in Ontario class action law that there cannot be a cause of action against a defendant without a plaintiff who has that cause of action. Rather, there must be for every named defendant, a named plaintiff with a cause of action against that defendant. The Ragoonanan principle was expressly endorsed by the Court of  Appeal in Hughes v. Sunbeam Corp. (Canada) Ltd. (2002), 2002 CanLII 45051 (ON CA), 61 O.R. (3de) 433 (C.A.) at paras. 13-18, leave to appeal to S.C.C. ref’d (2003), 224 D.L.R. (4th) vii.

[268]      It should be noted, however, that in Ragoonanan, Justice Cumming did not say that there must be for every separate cause of action against a named defendant, a named plaintiff. In other words, he did not say that if some class members had cause of action A against defendant X and other class members had cause of action B against defendant X that it was necessary that there be a named representative plaintiff for both the cause of action A v. X and for the cause of action B v. X. It was arguable that if the representative plaintiff had a claim against X, then he or she could represent others with the same or different claims against X.

[269]      Thus, there is room for a debate about the scope of the Ragoonanan principle, and, indeed, it has been applied in the narrow way, just suggested. Provided that the representative plaintiff has his or her own cause of action, the representative plaintiff can assert a cause of action against a defendant on behalf of other class members that he or she does not assert personally, provided that the causes of action all share a common issue of law or of fact: Boulanger v. Johnson & Johnson Corp., [2002] O.J. No. 1075 (S.C.J.) at para. 22, leave to appeal granted, [2002] O.J. No. 2135 (S.C.J.), varied (2003), 2003 CanLII 45096 (ON SCDC), 64 O.R. (3d) 208 (Div. Ct.) at paras. 41, 48, varied 2003 CanLII 52154 (ON CA), [2003] O.J. No. 2218 (C.A.); Healey v. Lakeridge Health Corp., [2006] O.J. No. 4277 (S.C.J.); Matoni v. C.B.S. Interactive Multimedia Inc., 2008 CanLII 1539 (ON SC), [2008] O.J. No. 197 (S.C.J.) at paras. 71-77; Voutour v. Pfizer Canada Inc., [2008] O.J. No. 3070 (S.C.J.); Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25 (CanLII) at para. 37. Thus, a representative plaintiff with damages for personal injury can claim in respect of dependents with derivative claims provided that the statutes that create the derivative causes of action are properly pleaded: Voutour v. Pfizer Canada Inc., supra; Boulanger v. Johnson & Johnson Corp., supra.

[270]      As noted above, in the case at bar, Koskie Minsky and Siskinds submit that Labourers v. Sino-Forest has no problem with the Ragoonanan principle and that Smith v. Sino-Forest and especially the more elaborate Northwest v. Sino-Forest confront Ragoonanan problems.

[271]      For the purposes of this carriage motion, I do not feel it is necessary to do an analysis about the extent to which any of the rival actions are compliant with Ragoonanan.

[272]      The Ragoonanan problem is often easy to fix. The emergence of Mr. Collins in Smith v. Sino-Forest to sue for the primary market shareholders is an example, assuming that Mr. Smith’s own claims against the defendants do not satisfy the Ragoonanan principle. Therefore, I do not regard the plaintiff and defendant correlation as a determinative factor in determining carriage.

[273]      It is also convenient here to add that I do not see the spectre of challenges to the Superior Court’s jurisdiction over foreign class members or over the foreign defendants are a determinative factor to picking one action over another. It may be that Northwest v. Sino-Forest has the potential to attract more jurisdictional challenges but standing alone that potential is not a reason for disqualifying Northwest v. Sino-Forest.

3.      Determinative Factors

(a)   Attributes of the Proposed Representative Plaintiffs

[274]      I turn now to the determinative factors that lead me to the conclusion that carriage should be granted to Koskie Minsky and Siskinds in Labourers v. Sino-Forest.

[275]      The one determinative factor that stands alone is the characteristics of the candidates for representative plaintiff. In the case at bar, this is a troublesome and maybe a profound determinative factor.

[276]      Kim Orr extolled the virtues of having its clients, Northwest, Bâtirente and BC Investments, which collectively manage $92 billion in assets, as candidates to be representative plaintiffs.

[277]      Similarly, Koskie Minsky and Siskinds extolled the virtues of having Labourers’ Fund, Operating Engineers Fund, and Sjunde AP-Fonden as candidates for representative plaintiff, along with the support of major class member Healthcare Manitoba. Together, these parties to Labourers v. Sino-Forest collectively manage $23.2 billion in assets. As noted above, Koskie Minsky and Siskinds submitted that their clients were not tainted by involving themselves in the governance oversight of Sino-Forest, which had been lauded as a positive factor by Kim Orr.

[278]      As I have already discussed above in the context of the discussion about conflicts of interest, I do not regard Bâtirente’s, and Northwest’s interest in corporate governance generally or its particular efforts to oversee Sino-Forest as a negative factor.

[279]      However, what may be a negative factor and what is the signature attribute of all of these candidates for representative plaintiff is that it is hard to believe that given their financial heft, they need the Class Proceedings Act, 1992 for access to justice or to level the litigation playing field or that they need an indemnity to protect them from exposure to an adverse costs award.

[280]      Although these candidates for representative plaintiff would seem to have adequate resources to litigate, they seem to be seeking to use a class action as a means to secure an indemnity from class counsel or a third-party funder for any exposure to costs. If they are genuinely serious about pursuing the defendants to obtain compensation for their respective members, they would also seem to be prime candidates to opt out of the class proceeding if they are not selected as a representative plaintiff.

[281]      Mr. Rochon neatly argued that the class proceedings regime was designed for litigants like Mr. Smith not litigants like Labourers Trust or Northwest. He referred to the Private Securities Litigation Reform Act of 1995, legislation in the United States that was designed to encourage large institutions to participate in securities class actions by awarding them leadership of securities actions under what is known as a “leadership order”. He told me that the policy behind this legislation was to discourage what are known as “strike suits;” namely, meritless securities class actions brought by opportunistic entrepreneurial attorneys to obtain very remunerative nuisance value payments from the defendants to settle non-meritorious claims.

[282]      I was told that the American legislators thought that appointing a lead plaintiff on the basis of financial interest would ensure that institutional plaintiffs with expertise in the securities market and real financial interests in the integrity of the market would control the litigation, not lawyers. See: LaSala v. Bordier et CIE, 519 F.3d 121 (U.S. Ct App (3rd Cir)) (2008) at p. 128; Taft v. Ackermans, (2003), F.Supp.2d, 2003 WL 402789 at 1,2, D.H. Webber, “The Plight of the Individual Investor in Securities Class Actions” (2010) NYU Law and Economics Working Papers, para. 216 at p. 7.

[283]      Mr. Rochon pointed out that the litigation environment is different in Canada and Ontario and that the provinces have taken a different approach to controlling strike suits. Control is established generally by requiring that a proposed class action go through a certification process and by requiring a fairness hearing for any settlements, and in the securities field, control is established by requiring leave for claims under Part XXIII.1 of the Ontario Securities Act. See Ainslie v. CV Technologies Inc. (2008)
2008 CanLII 63217 (ON SC), 93 O.R. (3d) 200 (S.C.J.) at paras. 7, 10-13.

[284]      In his factum, Mr. Rochon eloquently argued that individual investors victimized by securities fraud should have a voice in directing class actions. Mr. Smith lost approximately half of his investment fortune; and according to Mr. Rochon, Mr. Smith is an individual investor who is highly motivated, wants an active role, and wants to have a voice in the proceeding.

[285]      While I was impressed by Mr. Rochon’s argument, it did not take me to the conclusions that the attributes of the institutional candidates for representative plaintiff in Labourers v. Sino-Forest and in Northwest v. Sino-Forest when compared to the attributes of Mr. Smith should disqualify the institutional candidates from being representative plaintiffs or be a determinative factor to grant carriage to a more typical representative plaintiff like Mr. Smith or Mr. Collins.

[286]       I think that it would be a mistake to have a categorical rule that an institutional plaintiff with the resources to bring individual proceedings or the means to opt-out of class proceedings and go it alone should be disqualified or discouraged from being a representative plaintiff. In the case at bar, the expertise and participation of the institutional investors in the securities marketplace could contribute to the successful prosecution of the lawsuit on behalf of the class members.

[287]      Although Mr. Smith and Mr. Collins might lose their voice, they might in the circumstances of this case not be best voice for their fellow class members, who at the end of the day want results not empathy from their representative plaintiff and class counsel.

[288]       Access to justice is one of the policy goals of the Class Proceedings Act, 1992 and although it may be the case that the institutional representative plaintiffs want but do not need the access to justice provided by the Act, they are pursuing access to justice in a way that ultimately benefits Mr. Smith and other class members should their actions be certified as a class proceeding.

[289]      On these matters, I agree with what Justice Rady said in McCann v. CP Ships Ltd., [2009] O.J. No. 5182 (S.C.J.) at paras. 104-105:

  1. I recognize that access to justice concerns may not be engaged when a class is comprised of large institutions with large claims. Authority for this proposition is found in Abdool v. Anaheim Management Ltd. (1995), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 (Div. Ct.). Moldaver J. made the following observation at p. 473:

As a rule, certification should have as its root a number of individual claims which would otherwise be economically unfeasible to pursue. While not necessarily fatal to an order for certification, the absence of this important underpinning will certainly weigh in the balance against certification.

  1. Nevertheless, I am satisfied on the basis of the record before me that the individual claims and those of small corporations would likely be economically unfeasible to pursue. Further, there is no good principled reason that a large corporation should not be able to avail itself of the class proceeding mechanism where the other objectives are met.
[290]      Another goal of the Class Proceedings Act, 1992 is judicial economy, and the avoidance of a multiplicity of actions. However, the Act envisions a multiplicity of actions by permitting class members to opt-out and bring their own action against the defendants. However, there is an exception. The only class member that cannot opt out is the representative plaintiff, and in the circumstances of the case at bar, one advantage of granting carriage to one of the institutional plaintiffs is that they cannot opt out, and this, in and of itself, advances judicial economy.

[291]      Another advantage of keeping the institutional plaintiffs in the case at bar in a class action is that the institutional plaintiffs are already to a large extent representative plaintiffs. They are already, practically speaking, suing on behalf of their own members, who number in the hundreds of thousands. Their members suffered losses by the investments made on their behalf by BC Investments, Bâtirente, Northwest, Labourers’ Fund, Operating Engineers Fund, Sjunde AP-Fonden, and Healthcare Manitoba. These pseudo-class members are probably better served by the court case managing the class action, assuming it is certified and by the judicial oversight of the approval process for any settlements.

[292]      These thoughts lead me to the conclusion that in the circumstances of the case at bar, a determinative factor that favours Labourers v. Sino-Forest and Northwest v. Sino-Forest is the attributes of their candidates for representative plaintiff. In this regard, Labourers v. Sino-Forest has the further advantage that it also has Mr. Grant and Mr. Wong, who are individual investors and who can give voice to the interests of similarly situated class members.

(b)   Definition of Class Membership and Definition of Class Period

[293]      The first group of interrelated determinative factors is: definition of class membership and definition of class period. These factors concern who, among the investors in Sino-Forest shares and bonds, is to be given a ticket to a class action litigation train that is designed to take them to the court of justice.

[294]      Smith v. Sino-Forest offers no tickets to bondholders because it is submitted that (a) the bondholders will fight with the shareholders about sharing the spoils of the litigation, especially because the bondholders have priority over the shareholders and secured and protected claims in a bankruptcy; (b) the bondholders will fight among themselves about a variety of matters including whether it would be preferable to leave it to their bond trustee to sue on their collective behalf to collect the debt rather than prosecute a class action for an unsecured claim for damages for misrepresentation; and (c) a misrepresentation action by the bondholders against some or all of the defendants may be precluded by the terms of the bonds.

[295]      In my opinion, the bondholders should be included as class members, if necessary, with their own subclass, and, thus, Smith v. Sino-Forest does not fare well under this group of interrelated factors. As I explained above, I do not regard the membership of both shareholders and bondholders in the class as raising insurmountable conflicts of interest. The bondholders have essentially the same misrepresentation claims as do the shareholders, and it makes sense, particularly as a matter of judicial economy, to have their claims litigated in the same proceeding as the shareholders’ claims.

[296]      Pragmatically, if the bondholders are denied a ticket to one of the class actions now at the Osgoode Hall station because of a conflict of interest, then they could bring another class action in which they would be the only class members. That class action by the bondholders would raise the same issues of fact and law about the affairs of Sino-Forest. Thus, denying the bondholders a ticket on one of the two class actions that has made room for them would just encourage a multiplicity of litigation. It is preferable to keep the bondholders on board sharing the train with any conflicts being managed by the appointment of separate class counsel for the bondholders, who can form a subclass at certification or later assuming that certification is granted.

[297]      As already noted above, for those bondholders who do not want to get on the litigation train, they can opt-out of the class action assuming it is certified. That the defendants may have defences to the misrepresentation claims of the bondholders is just a problem that the bondholders will have to confront, and it is not a reason to deny them a ticket to try to obtain access to justice.

[298]      In Caputo v. Imperial Tobacco Ltd., 2004 CanLII 24753 (ON SC), [2004] O.J. No. 299 (S.C.J.), Justice Winkler, as he then was, noted at para. 39 that there is a difference between restricting the joinder of causes of action in order to make an action more amenable to certification and restricting the number of class members in an action for which certification is being sought. He stated:

Although Rumley v. British Columbia, 2001 SCC 69 (CanLII), [2001] 3 S.C.R. 184 holds that the plaintiffs can arbitrarily restrict the causes of action asserted in order to make a proceeding more amenable to certification (at 201), the same does not hold true with respect to the proposed class. Here the plaintiffs have not chosen to restrict the causes of action asserted but rather attempt to make the action more amenable to certification by suggesting arbitrary exclusions from the proposed class. This is diametrically opposite to the approach taken by the plaintiffs in Rumley, and one which has been expressly disapproved by the Supreme Court in Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158. There, McLachlin C.J. made it clear that the onus falls on the putative representative to show that the “class is defined sufficiently narrowly” but without resort to arbitrary exclusion to achieve that result…..

[299]      For shareholders, Smith v. Sino-Forest is more accommodating; indeed, it is the most accommodating, in offering tickets to shareholders to board the class action train. Without prejudice to the arguments of the defendants, who may impugn any of the class period or class membership definitions, and assuming that the bondholders are also included, the best of the class periods for shareholders is that found in Smith v. Sino-Forest.

[300]      To be blunt, I found the rationales for shorter class periods in Labourers v. Sino-Forest and Northwest v. Sino-Forest somewhat paranoid, as if the plaintiffs were afraid that the defendants will attack their definitions for over-inclusiveness or for making the class proceeding unmanageable. Those attacks may come, but I see no reason for the plaintiffs in Labourers and Sino-Forest to leave at the station without tickets some shareholders who may have arguable claims.

[301]      If Mr. Torchio is correct that almost all of the shareholders would be covered by the shortest class period that is found in Labourers v. Sino-Forest, then the defendants may think the fight to shorten the class period may not be worth it. If they are inclined to challenge the class definition on grounds of unmanageability or the class action as not being the preferable procedure, the longer class period definition will likely be peripheral to the main contest.

[302]      I do not see the extension of the class period beyond June 2, 2011, when the Muddy Waters Report became public, as a problem. Put shortly, at this juncture, and subject to what the defendants may later have to say, I agree with Rochon Genova’s arguments about the appropriate class period end date for the shareholders.

[303]      If I am correct in this analysis so far, where it takes me is only to the conclusion that the best class period definition for shareholders is found in Smith v. Sino-Forest. It, however, does not take me to the conclusion that carriage should be granted to Smith v. Sino-Forest. Subject to what the defendants may have to say, the class definitions and class period in Labourers v. Sino-Forest and in Northwest v. Sino-Forest appear to be adequate, reasonable, certifiable, and likely consistent with the common issues that will be forthcoming.

[304]      Since for other reasons, I would grant carriage to Labourers v. Sino-Forest, the question I ask myself is whether the class definition in Labourers, which favourably includes bondholders, but which is not as good a definition as found in Smith v. Sino-Forest or in Northwest v. Sino-Forest should be a reason not to grant carriage to Labourers. My answer to my own question is no, especially since it is still possible to amend the class definition so that it is not under-inclusive.

(c)   Theory of the Case, Causes of Action, Joinder of Defendants, and Prospects of Certification

[305]      The second group of interrelated determinative factors is: theory of the case, causes of action, joinder of defendants, and prospects of certification. Taken together, it is my opinion, that these factors, which are about what is in the best interests of the putative class members, favour staying Smith v. Sino-Forest and Northwest v. Sino-Forest and granting carriage to Labourers v. Sino-Forest.

[306]      In applying the above factors, I begin here with the obvious point that it would not be in the interests of the putative class members, let alone not in their best interests to grant carriage to an action that is unlikely to be certified or that, if certified, is unlikely to succeed. It also seems obvious that it would be in the best interests of class members to grant carriage to the action that is most likely to be certified and ultimately successful at obtaining access to justice for the injured or, in this case, financially harmed class members. And it also seems obvious that all other things being equal, it would be in the best interests of class members and fair to the defendants and most consistent with the policies of the Class Proceedings Act, 1992 to grant carriage to the action that, to borrow from rule 1.04 or the Rules of Civil Procedure secures the just, most expeditious and least expensive determination of the dispute on its merits.

[307]      While these points seem obvious, there is, however, a major problem in applying them, because the court should not and cannot go very far in determining the matters that would be most determinative of carriage. A carriage motion is not the time to determine whether an action will satisfy the criteria for certification or whether it will ultimately provide redress to the class members or whether it would be the preferable procedure or the most expeditious and least expensive procedure to resolve the dispute.

[308]      Keeping this caution in mind, in my opinion, certain aspects of Northwest v. Sino-Forest make the other actions preferable. In this regard, I find the joinder of some defendants to Northwest v. Sino-Forest mildly troublesome.

[309]      More serious, in Northwest v. Sino-Forest, I find the employment and reliance on the tort action of fraudulent misrepresentation less desirable than the causes of action utilized to provide procedural and substantive justice to the class members in Smith v. Sino-Forest and Labourers v. Sino-Forest. In my opinion, the fraudulent misrepresentation action adds needless complexity and costs.

[310]      While the finger-pointing of the OSC at Ho, Hung, Ip, and Yeung supports their joinder, the joinder of Chen, Lawrence Estate, Maradin, Wong, and Zhao is mildly troublesome. The joinder of defendants should be based on something more substantive than their opportunity to be a wrongdoer, and at this juncture it is not clear why Chen, Lawrence Estate, Maradin, Wong, and Zhao have been joined to Northwest v. Sino-Forest and not to the other proposed class actions. Their joinder, however, is only mildly troublesome, because the plaintiffs in Northwest v. Sino-Forest may have particulars of wrongdoing and have simply failed to plead them.

[311]      Turning to the pleading of fraudulent misrepresentation, when it is far easier to prove a claim in negligent misrepresentation or negligence, the claim for fraudulent misrepresentation seems a needless provocation that will just fuel the defendants’ fervour to defend and to not settle the class action. Fraud is a very serious allegation because of the moral and not just legal turpitude of it, and the allegation of fraud also imperils insurance coverage that might be the source of a recovery for class members.

[312]      Kim Orr has understated the difficulties the plaintiffs in Northwest v. Sino-Forest will confront in impugning the integrity of Sino-Forest, Ardell, Bowland, Chan, Horsley, Hyde, Mak, Martin, Murray, Poon, Wang, West, Chen, Ho, Hung, Ip, Lawrence Estate, Maradin, Wong, Yeung, Zhao, Canaccord, CIBC, Credit Suisse, Credit Suisse (USA), Dundee, Haywood, Maison, Merrill, Merrill-Fenner, Morgan, RBC, Scotia, TD, UBS, E&Y, BDO, Pöyry, Pöyry Forest, JP Management.

[313]      Fraud must be proved individually. In order to establish that a corporate defendant committed fraud, it must be proven that a natural person for whose conduct the corporation is responsible acted with a fraudulent intent. See: Hughes v. Sunbeam Corp. (Canada), 2000 CanLII 22685 (ON SC), [2000] O.J. No. 4595 (S.C.J.) at para. 26; Toronto-Dominion Bank v. Leigh Instruments Ltd. (Trustee of), 1998 CanLII 14806 (ON SC), [1998] O.J. No. 2637 (Gen. Div.) at paras. 477-479.

[314]      A claim for deceit or fraudulent misrepresentation typically breaks down into five elements: (1) a false statement; (2) the defendant knowing that the statement is false or being indifferent to its truth or falsity; (3) the defendant having an intent to deceive the plaintiff; (4) the false statement being material and the plaintiff being induced to act; and (5) the defendant suffering damages: Derry v. Peek (1889), 14 App. Cas. 337 (H.L.); Graham v. Saville, 1945 CanLII 79 (ON CA), [1945] O.R. 301 (C.A.); Francis v. Dingman (1983), 1983 CanLII 1985 (ON CA), 2 D.L.R. (4th) 244 (Ont. C.A.). The fraud elements are the second and third in this list.

[315]      In the famous case of Derry v. Peek, the general issue was what counts as a fraudulent misrepresentation. More particularly, the issue was whether a careless or negligent misrepresentation without more could count as a fraudulent misrepresentation. In the case, the defendants were responsible for a false statement in a prospectus. The prospectus, which was for the sale of shares in a tramway company, stated that the company was permitted to use steam power to work a tram line. The statement was false because the directors had omitted the qualification that the use of steam power required the consent of the Board of Trade. As it happened, the consent was not given, the tram line would have to be driven by horses, and the company was wound-up. The Law Lords reviewed the evidence of the defendants individually and concluded that although the defendants had all been careless in their use of language, they had honestly believed what they had said in the prospectus.

[316]      In the lead judgment, Lord Herschell reviewed the case law, and at p. 374, he  stated in the most famous passage from the case:

I think the authorities establish the following propositions. First, in order to sustain an action for deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless, whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false has obviously no such honest belief. Thirdly, if fraud is proved, the motive of the person guilty is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.

[317]      Lord Herschell’s third situation is the one that was at the heart of Derry v. Peek, and the Law Lords struggled to articulate that relationship between belief and carelessness in speaking. Before the above passage, Lord Herschell stated at p. 361:

To make a statement careless whether it be true or false, and therefore without any real belief in its truth, appears to me to be an essentially different thing from making, through want of care, a false statement, which is nevertheless honestly believed to be true. And it is surely conceivable that a man may believe that what he states is the fact, though he has been so wanting in care that the Court may think that there were no sufficient grounds to warrant his belief.

[318]      Lord Herschell is saying that carelessness in making a statement does not necessarily entail that a person does not believe what he or she is saying. However, later in his judgment, he emphasizes that carelessness is relevant and could be sufficient to show that a person did not believe what he or she was saying.  Thus, carelessness may prove fraud, but it is not itself fraud. Lord Herschell’s famous quotation, where he states that fraud is proven when it is shown that a false statement was made recklessly, careless whether it be true or false, states only awkwardly the role of  carelessness and must be read in the context of the whole judgment.

[319]      In Angus v. Clifford, [1891] 2 Ch. 449 (C.A.) at p. 471, Bowen, L.J. discussed the role of carelessness or recklessness in establishing fraud; he stated:

Not caring, in that context [i.e., in the context of an allegation of fraud], did not mean taking care, it meant indifference to the truth, the moral obliquity which consists of wilful disregard of the importance of truth, and unless you keep it clear that that is the true meaning of the term, you are constantly in danger of confusing the evidence from which the inference of dishonesty in the mind may be drawn – evidence which consists in a great many cases of gross want of caution – with the inference of fraud, or of dishonesty itself, which has to be drawn after you have weighed all the evidence.

[320]      Bowen, L.J.’s statement alludes to the second element of what makes a statement fraudulent. Deceit or fraudulent misrepresentation requires that the defendant have “a wicked mind:” Le Lievre v. Gould, [1893] 1 Q.B. 491 at p. 498.  Fraud involves intentional dishonesty, the intent being to deceive. If the plaintiff fails to prove this mental element, then, as was the case in Derry v. Peek, the claim is dismissed. To succeed in an action for deceit or for fraudulent misrepresentation, the plaintiff must show not only that the defendant spoke falsely and contrary to belief but that the defendant had the intent to deceive, which is to say he or she had the aim of inducing the plaintiff to act mistakenly: BG Checo International Ltd. v. British Columbia Hydro and Power Authority (1993), 1993 CanLII 145 (SCC), 99 D.L.R. (4th) 577 (S.C.C.).

[321]      The defendant’s reason for deceiving the plaintiff, however, need not be evil. In the passage above from Derry v. Peek, Lord Herschell notes that the person’s motive for saying something that he or she does not believe is irrelevant. A person may have a benign reason for defrauding another person, but the fraud remains because of the discordance between words and belief combined with the intent to mislead the plaintiff: Smith v. Chadwick (1854), 9 App. Cas. 187 at p. 201; Bradford Building Society v. Borders, [1941] 2 All E.R. 205 at p. 211; Beckman v. Wallace (1913), 29 O.L.R. 96 (C.A.) at p. 101.

[322]      In promoting its fraudulent misrepresentation claim, Kim Orr relied on Gregory v. Jolley (2001), 2001 CanLII 4324 (ON CA), 54 O.R. (3d) 481 (C.A.), which was a case where a trial judge erred by not applying the third branch of the test articulated in Derry v. Peek. Justice Sharpe discussed the trial judge’s failure to consider whether the appellant had made out a case of fraud based on recklessness and stated at para. 20:

With respect to the law, the trial judge’s reasons show that he failed to consider whether the appellant had made out a case of fraud on the basis of recklessness. While he referred to a case that in turn referred to the test from Derry v. Peek, the reasons for judgment demonstrate to my satisfaction that the trial judge simply did not take into account the possibility that fraud could be made out if the respondent made misrepresentations of material fact without regard to their truth. The trial judge’s reasons speak only of an intention to defraud or of statements calculated to mislead or misrepresent. He makes no reference to recklessness or to statements made without an honest belief in their truth. As Derry v. Peek holds, that state of mind is sufficient proof of the mental element required for civil fraud, whatever the motive of the party making the representation. In another leading case on civil fraud, Edgington v. Fitzmaurice, (1885), 29 Ch. D.459 at 481-82 (C.A.), Bowen L.J. stated: “[I]t is immaterial whether they made the statement knowing it to be untrue, or recklessly, without caring whether it was true or not, because to make a statement recklessly for the purpose of influencing another person is dishonest.” The failure to give adequate consideration to the contention that the respondent had been reckless with the truth in regard to the income figures he gave in order to obtain disability insurance constitutes an error of law justifying the intervention of this court.

[323]      From this passage, Kim Orr extracts the notion that there is a viable fraudulent misrepresentation against forty defendants all of whom individually can be shown to be reckless as opposed to careless. That seems unlikely, but more to the point, recklessness is only half the battle. The overall motive may not matter, but the defendant still must have had the intent to deceive, which in Gregory v. Jolley was the intent to obtain disability insurance to which he was not qualified to receive.

[324]      Recklessness alone is not enough to constitute fraudulent misrepresentation, as Justice Cumming notes at para. 25 of his judgment in Hughes v. Sunbeam Corp. (Canada), 2000 CanLII 22685 (ON SC), [2000] O.J. No. 4595 (S.C.J.), where he states:

The representation must have been made with knowledge of its falsehood or recklessness without belief in its truth. The representation must have been made by the representor with the intention that it should be acted upon by the representee and the representee must in fact have acted upon it.

[325]      I conclude that the fraudulent misrepresentation action is a substantial weakness in Northwest v. Sino-Forest. In fairness, I should add that I think that the unjust enrichment causes of action and oppression remedy claims in Labourers v. Sino-Forest add little.

[326]      The unjust enrichment claims in Labourers seem superfluous. If Sino-Forest, Chan, Horsley, Mak, Martin, Murray, Poon, Banc of America, Canaccord, CIBC, Credit Suisse, Credit Suisse  USA, Dundee, Maison, Merrill, RBC, Scotia and TD, are found to be liable for misrepresentation or negligence, then the damages they will have to pay will far exceed the disgorgement of any unjust enrichment. If they are found not to have committed any wrong, then there will be no basis for an unjust enrichment claim for recapture of the gains they made on share transactions or from their remuneration for services rendered. In other words, the claims for unjust enrichment are unnecessary for victory and they will not snatch victory if the other claims are defeated. Much the same can be said about the oppression remedy claim. That said, these claims in Labourers v. Sino-Forest will not strain the forensic resources of the plaintiffs in the same way as taking on a massive fraudulent misrepresentation cause of action would do in Northwest v. Sino-Forest.

[327]      For the purposes of this carriage motion, I have little to say about the “Integrity Representation” approach to the misrepresentation claims that are at the heart of the claims against the defendants in Northwest v. Sino-Forest or of the “GAAP” misrepresentation employed in Labourers v. Sino-Forest, or the focus on the authorized intermediaries in Smith v. Sino-Forest. Short of deciding the motion for certification, there is no way of deciding which approach is more likely to lead to certification or which approach the defendants will attack as deficient. For present purposes, I am simply satisfied that the class members are best served by the approach in Labourers v. Sino-Forest.

[328]      The cohesive, yet adequately comprehensive, approach used in Smith v. Sino-Forest appears to me close to Labourers v. Sino-Forest, but in my opinion, Smith v. Sino-Forest wants for the inclusion of the bondholders, and, as noted above, there are other factors which favour Labourers v. Sino-Forest over Smith v. Sino-Forest. That said, it was a close call for me to choose Labourers v. Sino-Forest and not Smith v. Sino-Forest.

H.                CONCLUSION

[329]      For the above Reasons, I grant carriage to Koskie Minsky and Siskinds with leave to the plaintiffs in Labourers v. Sino-Forest to deliver a Fresh as Amended Statement of Claim.

[330]      In granting leave, I grant leave generally and the plaintiffs are not limited to the amendments sought as a part of this carriage motion. It will be for the plaintiffs to decide whether some amendments are in order to respond to the lessons learned from this carriage motion, and it is not too late to have more representative plaintiffs.

[331]      I repeat that a carriage motion is without prejudice to the defendants’ rights to challenge the pleadings and whether any particular cause of action is legally tenable.

[332]      I make no order as to costs, which is in the usual course in carriage motions.

 

_____________________

Perell, J.

Released:  January 6, 2012

SCHEDULE “A”

 

CITATION: Smith v Sino-Forest Corporation, 2012 ONSC24

COURT FILE NO.:  11-CV-428238CP

COURT FILE NO.: 11-CV-431153CP

COURT FILE NO.:  11-CV-435826CP

DATE: January 6, 2012

 

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Douglas Smith and Zhongjun Goa

Plaintiff

‑ and ‑

Sino-Forest Corporation et al.

Defendants

AND BETWEEN:

The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada and the Trustees of the International Union of Operating Engineers Local 793 Pension Plan for Operating Engineers in Ontario

Plaintiff

‑ and ‑

Sino-Forest Corporation et al.

Defendants

AND BETWEEN:

Northwest & Ethical Investments L.P., Comité Syndical National de Retraite Bâtirente Inc.

Plaintiff

‑ and ‑

Sino-Forest Corporation et al.

Defendants

________________________________________

 

REASONS FOR DECISION  

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Perell, J.

Released: January 6, 2012.