Alan A. Farrer

The court considered a motion seeking approval of a proposed $10 million class action settlement relating to investment advice involving leveraged borrowing to purchase mutual or segregated funds.

Although the court found the overall settlement amount to be fair and reasonable in light of litigation risks, potential appeals, and the complexity of individualized damages, it determined that the settlement administration process lacked procedural fairness.

Specifically, the settlement agreement required a “challenge” mechanism allowing class members to contest the calculation of their compensation, but the administrator had not implemented a meaningful challenge process.

Several objectors raised concerns about how their losses were calculated and were given no adequate opportunity to dispute the administrator’s determinations.

The court therefore declined to approve the settlement at that stage and adjourned the motion to allow implementation of a proper challenge process.

The plaintiffs brought a motion for approval of a $10 million class action settlement and class counsel fees regarding an alleged investment leveraging scheme.

While the court found the settlement quantum and proposed counsel fees to be fair and reasonable, it refused to approve the settlement at this time due to a lack of procedural fairness.

Specifically, the settlement administrator failed to implement a transparent challenge process for class members to dispute their individual compensation amounts, as required by the settlement agreement.

The motion was adjourned to allow the parties to implement the required challenge process.

Costs decision following motions in two related civil actions seeking orders that the actions be tried together or sequentially, extensions of time to set the matters down for trial, and leave to amend a statement of claim.

Some relief sought by the plaintiffs was unopposed and granted, while other relief was modified by the court, which ordered the matters placed on the trial list together with the trial judge retaining discretion to try them together or separately.

The court found that neither side achieved complete success, as the plaintiffs did not obtain the precise relief requested and the opposing parties shifted their position during the hearing.

Given the divided success and the circumstances of the motions, the court concluded that no costs order was appropriate.

The plaintiffs brought motions seeking an order that two civil actions arising from alleged sexual assaults by a school guidance counsellor be tried together or consecutively.

The plaintiffs also sought an extension of time to set the actions down for trial and leave to amend one statement of claim.

The court applied Rule 6.01 of the Rules of Civil Procedure and found that the actions shared common questions of fact, overlapping witnesses, and a risk of inconsistent findings.

The court concluded that judicial economy and the interests of justice supported coordinating the proceedings.

Leave to amend was granted, timelines for trial were extended, and the actions were ordered to be placed on the trial list to be tried together or consecutively as directed by the trial judge.

In a certified class proceeding concerning alleged misrepresentations about a planned golf course in a residential subdivision, the defendants brought a motion for summary judgment arguing that the class members’ misrepresentation claims were barred by the two‑year limitation period under the Limitations Act, 2002.

The defendants contended that the limitation period began when a municipal public meeting and newspaper articles revealed that the golf course would not be built.

The court held that discoverability of the alleged misrepresentation was an individualized factual question for each class member and could not be determined on a class‑wide basis.

The court also held that a summary judgment motion against class members was procedurally unavailable because the limitation defence was not a certified common issue under the Class Proceedings Act, 1992.

The motion for summary judgment was dismissed.

In a proposed class action concerning alleged misrepresentations in a vending machine distributorship program, the plaintiffs sought leave to file an additional affidavit after cross-examinations had already been completed on a pending summary judgment motion.

The evidence came from a principal of a co-defendant who had entered into a cooperation agreement with the plaintiffs and purported to provide evidence supporting the existence of a partnership or franchisor’s associate relationship.

The court considered Rule 39.03(2) of the Rules of Civil Procedure, which restricts the filing of additional affidavits after cross-examinations without leave.

Although the court found the plaintiffs had not demonstrated that the evidence was previously unavailable and expressed concerns about the cooperation agreement and procedural fairness, it ultimately granted leave because the moving defendant would suffer no prejudice and preferred that the evidentiary record be complete.

Costs were awarded to the opposing party in any event of the cause.

The plaintiffs brought a motion to certify a class action against financial advisors and their dealer, alleging they systemically recommended a 'Leveraging Scheme' to borrow money to invest in mutual funds without regard to suitability.

The court granted certification, finding that the pleadings disclosed a cause of action, the class was identifiable, and common issues existed regarding the duty of care, breach of duty, and punitive damages.

The court declined to certify damages as a common issue, finding it required individual assessment.

The court also held that a class proceeding was preferable to the Ombudsman for Banking and Investment Services (OBSI) process, which lacked binding remedial powers and adequate investor participation.

A motion to introduce fresh evidence of an MFDA settlement was dismissed.