BP Investors Return to Ontario Court Seeking the Access to Justice that was Denied Internationally

On March 3, 2016, the Plaintiff, on behalf of the Class of Canadian-based BP investors that purchased BP’s securities between May 9, 2007 and May 28, 2010, filed a motion to remove the stay of proceedings instituted by the Ontario Court of Appeal on August 14, 2014.

The stay of proceedings was initially issued on the basis that while the Ontario Court did have jurisdiction to hear the action, it should stay the action because the United States and United Kingdom were more appropriate fora to adjudicate the claim.

After the stay of proceedings was ordered, the plaintiff took several steps in an attempt to heed the Ontario Court’s directions, and sought to commence an action for his claims in both the United States District Court for the Southern District of Texas (the “Texas Court”) and in the U.K. However, the Plaintiff’s attempts at commencing his actions were unsuccessful in both jurisdictions.

The Texas Court ruled that the Plaintiff was precluded from commencing his action in Texas because the lead U.S. plaintiff counsel in a parallel class proceeding had been vested with the sole authority to determine which claims , including foreign claims, to advance on behalf of the class and it had chosen not to advance a claim pursuant to the Ontario Securities Act (“OSA”). The Texas Court also incorrectly ruled that the limitations period under the OSA had expired.

The Plaintiff was similarly unable to commence an action in the U.K. due to the incredibly high costs associated with commencing a proceeding of this nature on behalf of Canadian investors under the U.K. regime. Despite exhaustive efforts, Plaintiff’s counsel could not find or be referred to a single law firm or third-party litigation funder in London, England that would accept the Canadian Proceeding mandate.

Accordingly, the Plaintiff has come back before the Ontario Court seeking the access to justice it has been denied so far. It is the Plaintiff’s position that a stay of proceedings based on forum non conveniens must presuppose that the litigant will have access to justice in the foreign fora which are found to be clearly more appropriate.

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