a constituent element of the statutory cause of action, it is somewhat of
a shape-shifter constituent element that does not lend itself to being resolved
As a constituent element, public correction operates much differently than
say misrepresentation operates as a constituent element in the statutory cause
of action or in the common law tort of negligent misrepresentation. As noted by
Justice Belobaba, the issue of whether there has been a public correction is
transformed into a matter of defence.
[ 120] Further, the time-post role of a public correction must be
considered in light of the purposes of the Act, set out in s. 1.1, to
(a) protect investors from unfair, improper or fraudulent practices;
(b) foster fair and efficient capital markets and confidence in
capital markets; and (c) contribute to the stability of the financial
system and the reduction of systemic risk.
[ 121] Consequently, the leave requirement analysis must be
undertaken with consideration of the role of a public correction.
If there is a reasonable possibility based on a robust analysis of
the evidence that a trial court could find that the purported
public correction could serve as a “time-post” for damages, leave
ought to be granted.
[ 122] If there is no reasonable possibility that a trial court
could find that the purported public correction could serve as
a “time-post” for damages, leave ought not to be granted.
iii. The criteria for a public correction
[ 123] In Swisscanto, Belobaba J. commented that “the scope
and content of the public correction requirement has not been judicially considered, at least not in a principled fashion” (at para.
3). He then reviewed “the case law so far” (at paras. 60-63) and
set out criteria to establish a public correction (at paras. 64-65).
[ 124] Belobaba J. set out the following criteria to establish
a public correction (quoted verbatim, at para. 65):
( i) The public correction must be pleaded with sufficient precision to provide
fair notice to the defendant. The plaintiff must point to specific words or fig-
ures that allegedly constitute the public correction of the alleged misrepre-
sentation. Because the function of the public correction requirement under
s. 138.3(1) is to establish the second “time-post” for fixing liability, the plain-
tiff must also identify the timing of the public correction.
( ii) The pleaded public correction need not be a “mirror-image” of the alleged
misrepresentation or a direct admission that a previous statement is untrue.
But there must be some linkage or connection between the pleaded public
correction and the alleged misrepresentation — at the very least, the pleaded
public correction must share the same subject matter as, and in some way
relate back to, the misrepresentation. The fact that an alleged public correction is over or under-inclusive relative to the misrepresentation is not a bar
to establishing that the words or figures constitute a public correction. Of