October 9, 2013 News

Ontario Court denies BP, plc’s motion to dismiss for lack of jurisdiction

During the relevant time period, BP plc purposely availed itself to the Ontario Securities Act regime by registering itself to be a “reporting issuer.”  Although BP de-listed its securities from the Toronto Stock Exchange and ceased being a reporting issuer, BP made an expressed commitment to continue to provide its Canadian-based investors with its investor documents.

Plaintiff alleges that while BP was a reporting issuer and thereon after, BP sent its investor documents containing material misrepresentations to Canadian-based investors to encourage the investors to hold or purchase additional BP securities listed on the London and New York Stock Exchanges.

BP motioned the court to dismiss the action or, alternatively, stay the action on the basis of forum non conveniens.

Over a day and a half, including on Mr. Morganti’s birthday, the parties argued various aspects of Club Resorts Ltd v Van Breda, 2012 SCC 17 and Abdula v Canadian Solar Inc, 2012 ONCA 211; the leading cases in Canada concerning jurisdiction and the scope of what it means to be a Ontario Securities Act “responsible issue,” as defined under section 138.1.   Plaintiff Kaynes also argued the analogies of Ontario v Rothmans, 2013 ONCA 353 (a new connecting factor to support the exercise of jurisdiction).  BP vigorously argued that Ontario should adopt the U.S. approach of rejecting jurisdiction over claims relating to securities purchased on foreign stock exchanges.  Morrison v National Australian Bank, 130 S.Ct. 2869, 2881-83 (2010).

The Court rejected all of BP’s arguments.  See, Kaynes v BP plc, 2013 ONSC 5802 (Conway, J), at paras 33, 36-37, 42, 48 and 51.