A. Dimitri Lascaris

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The defendant BCE Inc. brought a consent motion to discontinue a proposed class action concerning alleged secondary market misrepresentations.

The court found that the plaintiff's statutory and common law claims were statute-barred because no motion for leave had been brought within the applicable limitation periods.

As no purpose would be served by continuing the action and no prejudice would result, the court granted leave to discontinue the action without costs and without notice to the putative class members.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

The plaintiff sought clarification of a prior ruling on a motion for leave to commence a statutory cause of action for secondary market misrepresentation under Part XXIII.1 of the Securities Act.

The earlier decision granted leave for some alleged misrepresentations but dismissed others, including allegations relating to revenue recognition in the issuer’s 2008 financial statements.

The parties requested clarification regarding whether the alleged misrepresentation in the issuer’s October 14, 2009 Management’s Discussion and Analysis concerning revenue recognition had been determined.

The court held that although there was likely an internal control deficiency relating to revenue recognition at the time of the MD&A, there was no evidence that the deficiency, standing alone, was material.

Leave was therefore refused and the motion dismissed with respect to that alleged misrepresentation.

A shareholder sought leave under s. 138.8 of the Securities Act to commence a statutory secondary market misrepresentation action under s. 138.3 against a solar energy company and two of its officers.

The alleged misrepresentations concerned financial statements, internal control disclosures, and statements incorporated into a prospectus supplement.

The court held that the plaintiff demonstrated a reasonable possibility of success regarding alleged misrepresentations in the issuer’s original Q4 2009 financial statements and the October 2009 prospectus supplement, including related press releases and conference calls.

However, the plaintiff failed to establish sufficient evidence of misrepresentation in earlier 2009 interim financial statements or the 2008 revenue recognition disclosure.

Leave was granted in part and refused in part.

In a class proceeding relating to alleged misconduct involving a public corporation, the court addressed a correction to a prior costs decision.

The earlier reasons contained a factual error regarding the quantum of costs awarded to certain defendants on a motion to amend.

On consent of the parties, the court corrected the error and revised the amount payable.

The corrected award granted the defendants all‑inclusive costs for the amendments motion in a lower amount than originally stated.

Following an earlier decision dismissing a motion by the plaintiffs to amend their statement of claim and rejecting most of their requested changes to a discovery plan in a securities class action, the court addressed costs.

The defendants sought substantial partial indemnity costs for both the amendments motion and the discovery plan motion.

The court held that the amendments motion was a significant and high-stakes procedural dispute in complex class proceedings and that the defendants’ claimed costs were within the reasonable expectations of the losing party.

The court also found that the plaintiffs’ demands regarding the discovery plan were disproportionate and that the defendants were the successful party on that motion.

Costs were awarded to the defendants both for the amendments motion and, in any event of the cause, for the discovery plan motion.

Following dismissal of the representative plaintiffs’ motion seeking production of documents generated during a World Bank sanctions investigation involving the corporate defendant, the defendants sought costs of approximately $98,721.66 on a partial indemnity basis.

The plaintiffs argued that costs should be in the cause or substantially reduced due to proportionality and access-to-justice concerns in class proceedings, and challenged certain expert disbursements.

The court held that the defendants were entitled to recover their claimed costs but fashioned a hybrid order reflecting the realities of class action litigation.

The court ordered costs of $98,721.66 inclusive of HST, with $25,000 payable forthwith and the balance payable in the cause or set off against future costs awards if the defendants ultimately succeeded.

The ruling emphasized the multiple purposes of costs, including indemnity, discouraging meritless motions, and balancing access-to-justice concerns in complex class actions.

Following the dismissal of a motion for leave to appeal, the successful defendants sought costs.

The plaintiff argued that costs should be in the cause of a forthcoming leave and certification motion, but the court rejected this position and held that costs should generally be determined at each stage of the proceeding.

The court also rejected the plaintiff’s submission that the defendants’ costs should be limited to the range the plaintiff would have sought had it succeeded.

Considering the rates of senior counsel and the parties’ costs outlines, the court fixed fair and reasonable costs payable by the plaintiff.

The plaintiffs in a certified class proceeding alleging secondary market misrepresentation brought a motion for the production of documents from the defendant SNC, including a Negotiated Resolution Agreement between SNC and the World Bank regarding bribery allegations.

The court dismissed the motion, finding that the documents were protected by settlement privilege.

The court held that the World Bank's sanctions procedures constituted 'litigation' for the purposes of the privilege, that the communications were intended to be confidential, and that their purpose was to effect a settlement.

The court declined to create a public policy exception to the privilege and found no waiver of the privilege by SNC.

The plaintiff sought leave to appeal an interlocutory order dismissing a motion to compel answers and document production arising from a cross‑examination on an affidavit filed in a class proceeding certification motion.

The underlying dispute concerned whether defendants were required to answer questions relating to a proposed statutory cause of action under Part XXIII.I of the Ontario Securities Act when the affidavit had been filed only for purposes of certification under the Class Proceedings Act.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that leave to appeal requires either conflicting authority or good reason to doubt the correctness of the order, together with sufficient importance of the issue.

The court found neither conflicting decisions nor any basis to doubt the motion judge’s ruling that the refused questions were irrelevant to the certification motion.

Leave to appeal was therefore denied.

The Ontario Plaintiffs brought a motion for approval of a $117 million settlement and release of claims against Ernst & Young LLP within the CCAA restructuring of Sino-Forest Corporation.

Several institutional investors objected, arguing that the settlement improperly extinguished their opt-out rights under the Class Proceedings Act and that the third-party release was not justified under the CCAA.

The court approved the settlement and release, finding them fair, reasonable, and rationally related to the restructuring plan.

The court held that claims compromised within a CCAA proceeding do not afford opt-out rights, and the settlement provided a substantial benefit to stakeholders.

In a proposed securities class action arising from the takeover of a mining company through a joint bid on the Toronto Stock Exchange, multiple defendant groups moved to transfer the proceeding from London, Ontario to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs opposed the transfer, asserting that the dispute had multinational elements and that no venue factor strongly favoured Toronto.

The court held that the defendants failed to establish that a transfer was desirable in the interests of justice and dismissed the transfer motions.

The plaintiffs also moved to stay a related statutory valuation proceeding involving dissenting shareholders under the Business Corporations Act.

The court granted a temporary stay, finding substantial overlap in factual and expert valuation issues and concluding that a stay would avoid duplication of proceedings and promote access to justice.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.

In a proposed securities class action alleging secondary market misrepresentation by a publicly traded company and several of its officers and directors, the plaintiff brought a motion for substituted service of pleadings on two individual defendants who had not been personally served.

One defendant’s whereabouts were uncertain in Québec and the other, a Canadian citizen ordinarily resident in Québec, was incarcerated in Switzerland while criminal proceedings were ongoing.

The court considered Rules 16.04 and 17.05 of the Rules of Civil Procedure and the interaction with the Hague Convention on service abroad.

It held that the rule prohibiting substituted service where Hague Convention service is required did not apply because the defendant’s ordinary residence and connection to Canada justified service under the general rule.

The court concluded that the proposed methods of service through counsel were reasonably likely to bring the proceedings to the defendants’ attention.

The defendants and proposed defendants sought leave to appeal a motion judge's ruling on a Rule 21 motion, an order certifying the proceeding as a class proceeding, and an order granting the plaintiffs leave to commence an action under the Securities Act.

The court granted leave to appeal the Rule 21 motion in relation to the pleadings of negligence and negligent misrepresentation, noting that two recent Supreme Court of Canada decisions created a correctness and conflict issue.

Consequently, leave to appeal the certification order was also granted.

Furthermore, the court granted the proposed defendants leave to appeal the order allowing proceedings against them under the Securities Act, finding good reason to doubt the correctness of the motion judge's determination that they were de facto officers of the Income Fund.

The court issued an endorsement to settle the terms of a certification order in a securities class action, following the certification of conspiracy claims.

The defendants sought to exclude 'early sellers' from the class definition and challenged the class period dates.

The court declined to exclude early sellers, finding it premature as the scope of those entitled to relief for conspiracy was uncertain.

The court also approved the class period dates as they aligned with the plaintiff's theory of the case.

Finally, the court approved the plaintiff as a suitable representative for both primary and secondary market purchasers regarding the conspiracy claim.