Does the efficient market theory apply to the fraudulent misrepresentation claim?

Cumming J. concluded that it would be premature to foreclose the consideration of this issue at the pleadings stage. While rejecting the “deemed reliance” approach of the fraud on the market theory, Cumming J. permitted the claim to proceed. It would be open to the plaintiffs to attempt at trial to establish reliance by class members as a fact by reference to the efficient market theory. Later, when certifying the class for settlement in Mondor v. Fisherman, [2002] O.J. No. 1855 (S.C.), at para. 22 (“Mondor [Settlement]”), Cumming J. noted, as part of his analysis in approving the certification and proposed settlement, that there was uncertainty whether reliance could be established “by the simple act of purchase of the shares or whether each shareholder would have to establish individually that he or she relied upon a misrepresentation”.