Cassels Brock successfully resisted a motion to add its clients, Bank of Montreal and certain affiliates (BMO) as defendants to a proposed billion-dollar class action arising from allegations of an international price-fixing conspiracy in the foreign currency exchange market between 2003 and 2013. The proposed class action was commenced in 2015, naming 48 financial institutions as defendants, but the plaintiffs did not seek to add BMO until July 2016, more than two years after the end of the alleged conspiracy.
In refusing to allow BMO to be added, Justice Perell found that the plaintiffs had failed to meet their low evidentiary burden of showing that they acted with reasonable diligence in discovering the proposed claim to justify abrogating the otherwise presumptive two year limitation. In light of the implications for defendants being added to large class proceedings after the expiry of a presumptive limitation period, this decision is an important reminder that the court play an important gatekeeper role in respect of attempts to bring forward late claims.
BMO was represented at the motion by Cassels litigators Lara Jackson and Chris Horkins, with a defence team including Wendy Berman and Stephanie Kerzner.