Andrew J. Morganti

The parties disagreed on whether the judge should sign an order dismissing the plaintiff's prior certification and leave motions, or wait for the plaintiff's "motion for reconsideration." The plaintiff argued that signing the order might render the court functus officio, potentially precluding the reconsideration motion.

The defendant argued that the pronouncement of judgment was final and the order should be issued without delay.

The court decided to sign the order, issuing a fiat for its issuance and entry, clarifying that this decision did not determine the functus officio or abuse of process issues, which would be addressed in the context of the plaintiff's omnibus reconsideration motion.

Nobilis Health Corp. sought costs after successfully defending a class action certification motion and leave application brought by Vince Cappelli.

Nobilis requested $200,000 in partial indemnity fees and $311,696.39 in disbursements, primarily for three expert reports.

Cappelli did not oppose the fees but challenged the disbursements as excessive and duplicative.

The court found the expert evidence necessary and critical, despite some overlap, and deemed the disbursements fair and reasonable given the litigation risk.

Costs were awarded to Nobilis as requested, with the Class Proceedings Fund ultimately responsible for payment.

The plaintiff sought leave under s. 138.8(1) of the Securities Act to bring a statutory cause of action for secondary market misrepresentation against the defendant corporation, and to certify the action as a class proceeding.

The plaintiff alleged that the defendant made material misrepresentations in its financial statements, which were later restated.

The court dismissed the motion for leave, finding that the plaintiff had no reasonable possibility of success because the specific misrepresentations pleaded were not material to a reasonable investor, and the alleged corrective disclosure did not relate to the pleaded misrepresentations.

Consequently, the certification motion was also dismissed.

The plaintiff sought leave to proceed with a class action for secondary market misrepresentation against a company and its officers.

The claims arose from an unauthorized investment made by the CEO, which was not fully disclosed in subsequent financial statements and press releases.

The court granted leave, finding a reasonable possibility that the CFO knew or deliberately avoided knowing about the unauthorized investment, and that a press release announcing the CEO's departure constituted a public correction, signaling concerns about the CEO's conduct related to the investment.

The court determined the costs award following the dismissal of a securities class action against the defendant on jurisdiction and forum non conveniens grounds.

The successful defendant sought $696,393 in partial indemnity costs for both the jurisdiction and certification motions, while the plaintiff proposed $75,000 at most.

The court adjusted the defendant's request, particularly by removing expert fees for "efficient market" analysis deemed unnecessary.

Considering the timing of the jurisdiction motion and the impact of a prior analogous decision (Yip v HSBC Holdings) which simplified the legal analysis, the court fixed costs at $260,000, payable by the plaintiff to the defendant, emphasizing fairness and reasonableness to the losing party under Rule 57.01(1).

The plaintiff, George Leon, brought a proposed class action in Ontario against Volkswagen AG for fraudulent misrepresentation related to the purchase of VWAG American Depositary Receipts (ADRs) and common shares on foreign exchanges.

Volkswagen AG moved to dismiss the action for lack of jurisdiction or, alternatively, to stay it on the grounds of forum non conveniens.

The court dismissed the action, finding no real and substantial connection to Ontario, as VWAG did not carry on business in Ontario and the tort of fraudulent misrepresentation was not committed there.

The court also found that the U.S. (for ADRs) and Germany (for common shares) were clearly more appropriate forums, emphasizing the principle of international comity in cross-border securities litigation and giving little weight to the plaintiff's asserted juridical advantages in Ontario.

The plaintiff sought leave to bring a statutory misrepresentation class action under Part XXIII.1 of the Securities Act against MDC Partners Inc. and its former executives.

The plaintiff alleged that the defendants made material misrepresentations by failing to disclose an SEC subpoena, an internal investigation into executive expenses, and other accounting issues.

The court dismissed the motion for leave, finding that none of the alleged omissions or misstatements were material facts that would have significantly altered the total mix of information available to a reasonable investor, particularly given that the company's auditors never withdrew their clean audit opinions or required a restatement of financial statements.

The appellant sought to bring a class action against BP for secondary market misrepresentation under the Securities Act.

The motion judge found that eleven of fourteen alleged misrepresentations were statute-barred under the three-year limitation period in section 138.14 of the Act.

The appellant argued that section 138.3(6), which permits the court to treat multiple misrepresentations as a single misrepresentation, should extend the limitation period.

The Court of Appeal dismissed the appeal, holding that section 138.3(6) does not modify the event-triggered limitation period and was enacted to limit, not expand, liability.

Following the certification of a class action for primary market misrepresentation and breach of contract, the plaintiff sought costs against a defendant who consented to certification shortly before the scheduled motion.

The defendant argued there should be no order as to costs or costs in the cause.

The court found that the defendant's late consent necessitated additional work by the plaintiff and awarded the plaintiff costs of $10,000 plus HST in the cause.

The plaintiff brought a proposed class action for secondary market misrepresentation against the defendants under the Ontario Securities Act and common law.

The defendants brought motions to restrict the class to Canadians who purchased shares on the TSX, arguing that the Ontario court was forum non conveniens for Canadians who purchased on NASDAQ, and that American law should apply to those claims.

The court dismissed the motions, finding that the defendants failed to show that the U.S. was a clearly more appropriate forum, and that the statutory cause of action under the Ontario Securities Act applies extra-territorially to Canadian purchasers on foreign exchanges.

The plaintiff sought to certify a class action against a mining corporation, its executives, and its underwriters for misrepresentations in a short form prospectus related to a secondary public offering.

The corporate defendants consented to certification of the statutory misrepresentation claims.

However, the underwriters opposed certification of the common law negligent misrepresentation and negligence claims against them.

The court certified the action against the corporate defendants but dismissed the certification motion against the underwriters, finding that a class proceeding was not the preferable procedure due to the inevitability of individual trials on reliance and damages, and that the negligence claim failed to disclose a reasonable cause of action as it was subsumed by the negligent misrepresentation claim and did not establish a novel duty of care.

The defendant brought a motion under Rule 21.01(1)(a) for a declaration that the plaintiff's proposed class action claims for secondary market misrepresentations under Part XXIII.1 of the Securities Act were statute-barred.

The court found that 11 of the 14 alleged misrepresentations occurred more than three years before the action was commenced and were therefore statute-barred under s. 138.14.

The court rejected the plaintiff's argument that s. 138.3(6) could save the claims by treating them as a single continuous misrepresentation.

However, the court found that the remaining three misrepresentation claims were not necessarily statute-barred, as the plaintiff had served a notice of motion for leave before the limitation period expired, allowing for potential reliance on the nunc pro tunc doctrine.

The plaintiff sought leave under s. 138.8 of the Ontario Securities Act to commence an action for secondary market misrepresentation against Pretium Resources Inc. and Robert A. Quartermain.

The plaintiff alleged that the defendants failed to disclose material facts regarding conflicting expert opinions on the validity of a mineral resource estimate for the Brucejack Project, leading to a significant drop in share price.

The court granted leave, finding that the plaintiff established a reasonable possibility of success at trial.

The court determined that the concerns raised by Strathcona Mineral Services, a respected mining consultant, were material facts that a reasonable investor would consider important, despite Pretium's belief that the data was unreliable.

Furthermore, the court found a reasonable possibility that the defendants would not be able to establish the "no reasonable grounds to believe" branch of their reasonable investigation defense under s. 138.4(6) of the OSA.

Martin Gerard, as plaintiff in a class action against Detour Gold Corporation and Gerald Panneton, moved for court approval of a settlement agreement, a distribution plan, class counsel fees of $1,620,000 plus disbursements and taxes, and honoraria for the representative plaintiffs.

The court, having previously certified the class action for settlement purposes, found the $6 million settlement and distribution plan to be fair, reasonable, and in the best interests of the class, considering factors such as the likelihood of success, the arm's-length negotiations, and the absence of objections.

The court also approved the requested class counsel fees and honoraria for the representative plaintiffs, Martin Gerard and Terry Wright, acknowledging their significant efforts.

Martin Gerard brought a proposed class action against Detour Gold Corporation and Gerald Panneton alleging misrepresentations in public disclosures regarding gold production guidance, cash cost projections, and operating covenants.

The parties reached a settlement, and Mr. Gerard sought certification of the action as a class proceeding for settlement purposes and incidental relief.

The court granted the motion, finding all criteria for certification under the Class Proceedings Act, 1992, were satisfied, and approved the proposed common issues for settlement purposes.

The defendants (Underwriters) sought leave to appeal an interlocutory order that allowed the plaintiff to amend its claim to add the Underwriters as defendants in a class action and admitted the plaintiff's expert evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision regarding the admissibility of the expert evidence and the finding that the Underwriters would not suffer non-compensable prejudice by being added as parties.

The plaintiff brought a motion to strike the defendants' reply factum filed on a motion for leave to appeal.

The Divisional Court held that under Rule 61.03.1(11), a reply factum is only permitted where a new issue is raised by the responding party, not merely to provide a different perspective or reinforce points already made.

Finding that the reply factum addressed issues central to the leave motion rather than new issues, the court ordered the reply factum struck from the record.

The plaintiff, LBP Holdings Ltd., brought a motion in a proposed securities class action to add the defendant's underwriters (Cormark Securities Inc. and Dundee Securities Limited) as party defendants following the original defendant's bankruptcy.

The plaintiff sought to assert five claims: primary market statutory, secondary market statutory, common law negligence, common law negligent misrepresentation, and unjust enrichment.

The court granted leave to add the underwriters for the common law negligence and negligent misrepresentation claims, finding them tenable.

However, the primary market statutory claim was time-barred, and the secondary market statutory claim was untenable as underwriters were not considered "experts" under Part XXIII.1 of the Securities Act.

The unjust enrichment claim was also dismissed as legally untenable due to a valid contractual basis for fees and the principle against shareholder derivative actions for corporate wrongs.

The appellant appealed from an order dismissing its motion to stay or dismiss a proposed Ontario class proceeding for secondary market misrepresentation under Part XXIII.1 of the Securities Act.

The respondent, an Ontario resident, had purchased the issuer's shares on the New York Stock Exchange, and a parallel securities proceeding based on substantially the same alleged misrepresentations was already underway in the United States.

The court held that Ontario had jurisdiction simpliciter because the alleged statutory tort was committed in Ontario where disclosure documents were required to reach Ontario shareholders.

However, applying comity-based forum non conveniens principles, the court concluded Ontario should decline jurisdiction over foreign-exchange claims because the U.S. and U.K. regimes tie jurisdiction to the place of trading, parallel proceedings already existed, and Ontario jurisdiction would be opportunistic in light of negligible Canadian trading.

An Ontario resident brought a proposed securities class action against a U.K. issuer alleging secondary market misrepresentation under Part XXIII.1 of the Securities Act following the Deepwater Horizon oil spill.

The defendant moved to stay the action in part, arguing Ontario lacked jurisdiction over claims of investors who purchased securities on foreign exchanges and that the matter should proceed in U.S. or U.K. courts.

The court held that the statutory cause of action under s. 138.3 constitutes a statutory tort presumptively connected to Ontario where an Ontario investor is deemed to have relied on the misrepresentation.

The legislation did not restrict claims to purchases on Ontario exchanges, and the defendant failed to rebut the presumptive connecting factor.

The court further found the defendant did not establish that foreign courts were clearly more appropriate forums.