Adrian Pel

Two consolidated appeals concerning the interpretation of leave provisions in certification orders for class actions relating to trailing commissions paid to mutual fund managers.

The appellants (mutual fund managers) argued that new class actions commenced by different plaintiffs on behalf of different classes should have required leave under the certification orders because they related to the same subject matter.

The motion judge and Court of Appeal held that the leave requirement applied only to proceedings by the certified class members and parties to the original actions, not to new plaintiffs seeking to represent different classes.

The court dismissed the appeals, affirming that the leave provisions were limited in scope to the parties and class members bound by the original certification orders.

The defendants in several related class actions brought motions for summary judgment, arguing that the plaintiffs' actions were statute-barred by limitation periods or were a nullity for failing to obtain leave to commence.

The court adjourned the limitation period motions, finding they overlapped with common issues in earlier certified class actions.

The court dismissed the motions based on the leave requirement, interpreting the certification orders' leave provisions as applying only to competing class actions representing the same class members, not to actions by different classes arising from the same factual matrix.

The plaintiff in a certified class action moved to amend the class definition to extend the class period from May 18, 2021, to May 31, 2022.

The defendant opposed, arguing that claims of proposed new class members accruing after the original certification date were statute-barred and not tolled by s. 28 of the Class Proceedings Act, 1992.

The court granted the plaintiff's motion to amend the class definition, finding that while s. 28 does not toll limitation periods for claims accruing after certification for individuals who were not putative class members at the time of certification, the issue of discoverability for these new members should be left to the individual issues phase of the proceeding.

The court also approved the proposed notice plan.

This decision addresses the costs arising from the dismissal of Mr. Fiorini's application, which sought an interest in a property but was found to be devoid of credible evidence.

The respondents sought substantial indemnity costs, arguing the application was meritless, abusive, and retaliatory.

The court agreed, finding Mr. Fiorini's conduct reprehensible and deserving of sanction, including harassment and unnecessarily lengthening proceedings.

While the respondents requested $80,000, the court awarded $70,000 on a substantial indemnity basis, adjusting for an element of "over-lawyering" by the respondents in having two lawyers attend certain proceedings.

The applicant sought a 10% share interest in a corporation that owned a property, alleging an oral agreement with one of the respondents in exchange for services related to financing, soil remediation, permits, and finding buyers for the property.

The respondents denied any such agreement or authority to bind the corporation.

The court found no credible or reliable evidence to support the applicant's claims, noting the absence of any documentation for a significant business transaction and the applicant's evasiveness during cross-examination.

The application was dismissed.

The plaintiff brought a proposed class action against numerous pharmaceutical manufacturers and distributors regarding the marketing and sale of opioids in Canada.

The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action, and one defendant, Pro Doc Limitée, moved to dismiss the action against it for lack of jurisdiction.

The court granted Pro Doc's jurisdiction motion, finding no real and substantial connection to Ontario.

The court struck the claims against the distributor defendants without leave to amend, finding no viable cause of action.

The court found that while there were viable causes of action against the manufacturer defendants for breach of the Competition Act, negligent misrepresentation, fraudulent misrepresentation, and failure to warn, the plaintiff's pleading was defective.

The court struck the claims against the manufacturer defendants with leave to amend to join representative plaintiffs for each defendant group and to comply with the rules of pleading.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

Following the dismissal of the moving parties' motion for a certificate of pending litigation, both parties sought costs.

The moving parties argued they were substantially successful because the dismissal was conditional on an undertaking offered by the responding parties.

The court rejected this argument, noting the moving parties chose to proceed with the motion after the undertaking was offered.

The court awarded costs to the successful responding parties on a partial indemnity scale in the amount of $86,739.59.

The plaintiffs moved for leave to issue a certificate of pending litigation against a commercial property in Barrie, alleging an agreement to jointly acquire the property with the defendants.

The court found a triable issue regarding the plaintiffs' claim to an interest in the land, including whether one defendant acted as an agent for an undisclosed principal.

However, balancing the equities, the court dismissed the motion conditional upon the corporate owner providing an undertaking not to sell the property except to a bona fide purchaser, to pay 50% of net proceeds into court if sold, and to provide 30 days' notice of any refinancing or sale.

The plaintiff brought a motion to certify a class action against BMO Investments Inc. on behalf of investors who held BMO Mutual Funds through discount brokers.

The plaintiff alleged that BMO Investments improperly paid trailing commissions to discount brokers out of mutual fund assets, despite discount brokers providing no investment advice.

The court found that the plaintiff's claims for breach of trust, breach of fiduciary duty, breach of contract, breach of the Trustee Act, prospectus misrepresentation, and unjust enrichment all disclosed viable causes of action.

The court certified the class action, including a common issue for aggregate damages, and set the class end date as the date of the certification order.