[ 137] In Wong, Belobaba J. did not analyze the public correction
requirement,24 but his reasons (at paras. 17-18) reflect that he
considered the decrease in share price “[o]ver these 13 days in
October”, which took place from the date of the first notice of
Strathcona’s resignation in the October 9, 2013 press release,
until the omitted facts related to the sample tower test were disclosed in the second press release dated October 22, 2013.
Belobaba J. noted that the plaintiff had “sustained losses over the
time period in question”. Belobaba J. held that the claim had
a “reasonable possibility” of success.
[ 138] Consequently, while not directly analyzed in Wong, I take
from that decision that Belobaba J. was satisfied that the October
9, 2013 disclosure of Strathcona’s resignation, which itself resulted
in a share price decline, could “reasonably” constitute a partial
public correction25 (as would the subsequent October 22, 2013
Pretium statement that set out the previously omitted reason for
2. Application of the law to the facts of the present
[ 139] I first review the positions of the parties. I then apply the
above principles to the facts of the case.
i. The position of the Defendants
[ 140] The Defendants submit that the December 2016 Press
Release cannot be both a misrepresentation (by failing to disclose
that the Turcolt Investment was unauthorized), while also being
a public correction that the Turcolt Investment was unauthorized.
The Defendants submit (quoted verbatim):
( i) The December 21 news release could not omit and state the very same
thing, nor could it reveal that Perrault made the investment in Turcolt
without authority if that information was “first” revealed on January
31, 2017; and
( ii) The December 21 news release cannot simultaneously propagate a misrep-
resentation and correct that same misrepresentation.
[ 141] The Defendants submit that Kauf has failed to meet the
following requirements under the case law to establish a reasonable
24 There is no indication in the reasons that the issue was raised by the parties.
25 Also a misrepresentation because the October 9, 2013 news release did not
set out the reasons for Strathcona’s resignation.