In Kaynes v. BP, 2013 ONSC 5802 (CanLII), (“Kaynes“), Mr. Kaynes, the plaintiff, commenced a proposed class action against BP, the well-known multinational oil and gas company, headquartered in the United Kingdom and registered on the London, New York and Toronto Stock Exchanges. Kaynes alleged that BP made various misrepresentations in its investor documents before and after the Deepwater Horizon oil spill in the Gulf of Mexico in April 2010 (the “Oil Spill”). He sought leave to bring a statutory action for secondary market misrepresentation under Part XXIII.I of the Securities Act, R.S.O. 1990, c. S.5, and an alternative claim for common law negligent misrepresentation.
A parallel class action was commenced in the United States (In BP plc Securities Litigation, United States District Court for the Southern District of Texas, Case No. 4:10-md-02185) brought on behalf of a proposed class consisting of all purchasers of ADS over the NYSE between November 8, 2007 and May 28, 2010. Kaynes seeks to represent a class of Canadian residents who purchased BP shares between May 9, 2007 and May 28, 2010 and includes all Canadians who purchased common shares and ADS, whether on the TSX, NYSE or European exchanges; excluding any Canadian residents who purchased BP shares over the NYSE and who do not opt-out of the U.S. Proceeding.
BP brought a jurisdiction motion in advance of the leave and certification motions, seeking an order staying this proceeding (in part) based on lack of subject-matter jurisdiction, or, alternatively, on the basis of forum non conveniens.