The Motion: The Defendants Refuse to Produce Confidential Documents The defendants refused to produce the documents and stated that to the extent that any of the requests for production were reasonable, they would answer those requests at the cross-examinations. Shortly thereafter, the plaintiff served requests to inspect documents referenced in the affidavits.
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The defendants filed four responding affidavits. The plaintiff sought leave to commence a claim pursuant to the OSA for negligent misrepresentation against a mining company and two of its executives, and asked the Court to certify the claim as a class action. The Facts: Plaintiff Seeks Massive Production The precedential value of the decision was further strengthened when the Ontario Divisional Court refused to grant leave to appeal it. The decision explores the purpose of the OSA and is welcome news for defendants, who may lead evidence in response to such certification motions and leave motions with less concern that it will result in extensive early discovery. Silvercorp., Justice Belobaba of the Ontario Superior Court emphasized this difference when he refused to let the plaintiff inspect hundreds of confidential corporate documents before the leave motion.
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We have previously discussed how these are two very separate steps with very different evidentiary burdens.
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In Ontario, the motion for leave to commence a claim under the Ontario Securities Act (“OSA”) is usually heard at the same time as the certification motion in a prospective class action.