Agatha Wong

This motion concerned the approval of a class action settlement regarding trailing commissions paid by TD Asset Management Inc. to discount brokers.

The plaintiff alleged improper payments and misrepresentations.

The court approved a $70.25 million settlement for the class, along with the proposed notice plan, distribution protocol, and appointment of an administrator.

The court also approved class counsel fees and disbursements, an interim payment to the litigation funder, release of the funder's security, and an honorarium for the representative plaintiff.

The plaintiff moved, with the defendant's consent, for an order certifying a class proceeding for settlement purposes under the Class Proceedings Act, 1992.

The action concerned the payment of trailing commissions to discount brokers from TD Mutual Funds, allegedly diminishing unit value due to breach of fiduciary duty.

The court found all certification criteria met, including disclosure of a cause of action, an identifiable class, common issues (breach of fiduciary duty), and that a class proceeding was the preferable procedure, especially in the context of a settlement.

The proposed representative plaintiff was deemed adequate, and the notice plan, long-form and short-form notices, and opt-out process were approved.

The action was certified for settlement purposes.

The plaintiff obtained an ex parte Mareva injunction against multiple defendants, including Nova Diamonds Inc. and Toronto Reserve Gold Inc., alleging they received proceeds from a fraudulent mortgage.

The moving defendants sought to set aside the injunction, arguing the plaintiff failed to make full and frank disclosure on the ex parte motion.

The court found that the plaintiff failed to disclose that it had not conducted a tracing analysis to confirm the funds received by the moving defendants were actually the fraudulent proceeds, and that it had no evidence of a risk of dissipation.

The court set aside the Mareva injunction and subsequent non-dissipation orders against the moving defendants due to the plaintiff's material non-disclosure.

The plaintiff brought a last-minute motion to adjourn a virtual summary trial, arguing that credibility assessments and voluminous documents required an in-person hearing.

The court dismissed the motion, finding that virtual trials permit effective credibility assessments and electronic document management is efficient.

The court emphasized the strict limits on trial adjournments under the Consolidated Practice Direction and the necessity of proceeding virtually during the COVID-19 pandemic.

The appeal concerns the openness of a police services board hearing regarding an extension of time for service of a disciplinary notice.

Following an investigation by the Ontario Independent Police Review Director into allegations of police misconduct in the investigation of the death of an Indigenous man, a retired judge appointed as a substitute decision-maker ordered that the extension hearing be held in camera.

The Canadian Broadcasting Corporation and First Nation complainants sought judicial review, arguing that the hearing should be open pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms.

The Divisional Court upheld the in camera order, finding that the Dagenais/Mentuck test did not apply to administrative proceedings and that the statutory test under the Police Services Act was sufficient.

The Court of Appeal allowed the appeal, finding that while the Dagenais/Mentuck test does not apply to administrative proceedings, the Charter right to freedom of expression and freedom of the press recognized in Langenfeld applies to police services board meetings, and the presumption of openness under the Police Services Act must be considered in light of this Charter protection.