Celeste Poltak

The plaintiffs brought a consent motion to certify a securities class action for settlement purposes, approve a $12.5 million settlement, and approve class counsel fees of $3,437,500.

The action involved allegations of misrepresentation and failure to make timely disclosure regarding mining operations.

Despite earlier dismissals of certification and leave motions, the parties reached a settlement while a leave application to the Supreme Court of Canada was pending.

The court found the settlement fair and reasonable given the litigation risks, certified the action for settlement purposes, and approved the requested counsel fees.

Two competing groups of plaintiffs, KMG and RGG, brought class actions against Barrick Gold Corporation for securities misrepresentations related to environmental violations at a Chilean mine.

The motion judge granted carriage to RGG, finding their broader claims and superior state of preparation were in the best interests of the class.

KMG appealed the carriage order.

The Divisional Court dismissed the appeal, holding that the motion judge articulated the correct test, did not err in law or principle, and committed no palpable and overriding factual errors in his assessment of the carriage factors.

The appellant, Teranet Inc., appealed a Divisional Court decision certifying a class action brought by the respondent land surveyor for copyright infringement.

The respondent alleged that the appellant's provision of electronic copies of land surveys to the public for a fee infringed the surveyors' copyright.

The Court of Appeal dismissed the appeal, finding that the Divisional Court did not err in allowing the respondent to revise its class definition and common issues on appeal, as the changes were not fundamental and did not prejudice the appellant.

The Court further upheld the certification, concluding that the revised class definition was not merits-based, the common issues would significantly advance the litigation, and the respondent was a suitable representative plaintiff despite not relying on the appellant's services.

The appellants, trustees of a pension fund, sought leave under the Securities Act and certification under the Class Proceedings Act for a $4 billion class action against Kinross Gold Corporation for alleged misrepresentations regarding two gold mines.

The motion judge dismissed the motion, finding no reasonable possibility of success for the statutory claims due to flawed expert evidence, and consequently denied certification for the common law claims.

The Court of Appeal upheld the decision, confirming the motion judge's assessment of the leave test and concluding that a class action was not the preferable procedure for the remaining common law negligent misrepresentation claims due to the need for individualized inquiries into reliance.

A carriage motion was brought to determine which of two competing groups of class action firms should conduct a proposed securities class proceeding against a mining company and its executives arising from alleged misrepresentations about a Chilean mining project.

One action advanced a single claim based on environmental misrepresentations, while the competing action advanced multiple claims including environmental, capital expenditure, accounting misrepresentation, conspiracy, and limitation‑related doctrines.

The court held that on a carriage motion the judge should not determine which claim is most likely to succeed but should assess whether claims are viable and free of obvious defects.

The competing action advancing multiple viable claims and demonstrating a substantially higher level of preparation was found to better serve the interests of the class.

Carriage was therefore granted to the more comprehensive and better prepared action.

Following a successful appeal that certified a class proceeding after the appellant re-cast its case, the court determined the costs of the appeal and the motion below.

The appellant was awarded $45,000 for the appeal as the successful party.

However, because the appellant completely re-formulated its case on appeal, prejudicing the respondent at the motion stage, the court set aside the motion judge's $200,000 costs award to the respondent and ordered that neither party receive costs for the motion below.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.

In a motion under the Class Proceedings Act, 1992, class counsel sought court approval of legal fees following settlement of three related institutional abuse class actions involving provincially operated facilities for individuals with developmental disabilities.

The settlements created a total fund of $67.7 million, with additional administration and notice costs bringing the total cash value to approximately $70.7 million.

Class counsel requested $14 million in fees, representing approximately 20.68% of the settlement fund, plus disbursements and taxes.

The court applied the established factors for approving class counsel fees, including litigation risk, complexity, time invested, results achieved, and expectations of the class.

Finding the requested contingency fee within the common range for class actions and reasonable given the risks and work performed, the court approved the fees, disbursements, taxes, and the allocation of fees among the three actions.

The plaintiffs brought a motion for approval of settlements in two class actions against the Crown regarding the operation of the Rideau Regional Centre and the Southwestern Regional Centre, residential facilities for individuals with developmental disabilities.

The plaintiffs alleged negligence and breach of fiduciary duties resulting in harm and abuse.

The court approved the settlements, which included a $32.7 million settlement fund, a claims-based compensation scheme, an apology from the Premier, and other non-monetary benefits, finding them fair, reasonable, and in the best interests of the class members.

The plaintiffs brought a motion for certification of a class proceeding and for leave to proceed with statutory claims for misrepresentation under the Securities Act against Celestica Inc. and its former executives.

The plaintiffs alleged misrepresentations regarding a 2005 restructuring, inventory, revenue, and GAAP compliance.

The court granted leave and certified the class action solely with respect to the alleged misrepresentations about the 2005 restructuring, finding a reasonable possibility of success.

Leave and certification were denied for the inventory, revenue, and GAAP claims due to a lack of evidentiary foundation.

The court also declined to certify the common law negligent misrepresentation claim, finding it did not satisfy the preferable procedure criterion.

In three related securities class action appeals, the court reconsidered whether a statutory secondary-market misrepresentation claim under s. 138.3 of the Securities Act is time-barred unless leave is obtained within the s. 138.14 limitation period.

The court overruled Timminco and held that, for purposes of s. 28 of the Class Proceedings Act, 1992, the statutory claim is asserted when the representative plaintiff pleads the statutory cause of action, the supporting facts, and an intention to seek leave within a timely commenced class proceeding.

The court also upheld the motion judge's interpretation of the s. 138.8 leave standard as screening out hopeless claims, while holding that the Green certification decision erred in failing to consider certifying common negligent misrepresentation issues other than reliance.

The plaintiffs' appeal in Green was allowed in part and the defendants' appeals in Silver and Celestica were dismissed.

The plaintiffs moved for approval of a $35 million settlement in a class action against the Crown regarding alleged negligence and breach of fiduciary duties at the Huronia Regional Centre, a residential facility for individuals with developmental disabilities.

The settlement included a claims-based compensation scheme, an apology from the Crown, and various non-monetary benefits.

The court found the settlement to be fair, reasonable, and in the best interests of the class, considering the litigation risks and the advanced age of the class members.

The court also approved a $15,000 honorarium for each of the representative plaintiffs.

The appellant, Inco Limited, appealed a costs order awarding it $1,766,000 following its successful defence of a class action at the Court of Appeal.

Inco argued it was entitled to over $5.3 million and that the trial judge erred by reducing its legal fees and applying a 50 per cent discount under s. 31(1) of the Class Proceedings Act.

The Court of Appeal dismissed the appeal, finding no error in principle in the trial judge's determination that the environmental tort class action raised novel points of law and involved matters of public interest.

The court upheld the trial judge's methodical and reasonable costs analysis.

Trustees of a pension fund sought certification of a securities class action and leave to proceed with statutory secondary‑market misrepresentation claims under Part XXIII.1 of the Ontario Securities Act.

The proposed class alleged that a mining company and its officers misrepresented the value and prospects of two West African mines and failed to timely record a goodwill impairment.

The court analyzed the leave test requiring a “reasonable possibility of success at trial” and concluded that the plaintiffs’ theory relied on flawed expert analysis and speculative assumptions regarding drilling results and impairment triggers.

The alleged low‑grade ore misrepresentation was found to be semantically inaccurate, and an alleged schedule misrepresentation had not been pleaded.

Leave to proceed under the Securities Act was therefore refused, and certification was denied, though the individual common law negligence claim could continue.

The representative plaintiffs in a proposed securities class action sought court approval of a third party litigation funding agreement after the Ontario Class Proceedings Fund declined funding and class counsel declined to indemnify against adverse costs.

The funder agreed to indemnify the plaintiffs for adverse costs in exchange for a fixed percentage of any net recovery.

The court reviewed the developing jurisprudence on litigation funding in class proceedings and articulated guiding principles for approval, including requirements that the agreement not impair the solicitor‑client relationship, not undermine the representative plaintiff’s control of the litigation, and be fair and reasonable to the class.

The court also held that such agreements must be disclosed and approved by the court and may require security for costs.

Finding the agreement necessary to facilitate access to justice and fair to the class, the court approved the funding arrangement.

Representative plaintiffs in a certified class proceeding brought a motion seeking court approval of a $4 million settlement arising from allegations of physical, sexual, emotional, and psychological abuse at a residential school for children with learning disabilities and behavioural issues.

The court considered the settlement under s. 29(2) of the Class Proceedings Act, 1992, which requires approval if the settlement is fair, reasonable, and in the best interests of the class.

Significant litigation risks were identified, including uncertainty regarding insurance coverage, the defendants’ impecuniosity, and the possibility of contested liability and damages assessments.

The settlement created a points-based claims process with capped compensation and provided for charitable cy-près distribution of any residual funds.

The court concluded that the settlement, counsel fees representing 25% of the recovery, and honoraria for the representative plaintiffs were fair and reasonable.

The defendants brought a motion under Rule 59.06(1) of the Rules of Civil Procedure to amend a previously issued and entered order arising from a Rule 21 motion in a proposed securities class action.

The original order dismissed the defendants’ motion to strike claims under Part XXIII.1 of the Securities Act but failed to reflect the judge’s reasoning that the special circumstances doctrine permitted leave to be granted nunc pro tunc despite the expiry of the statutory limitation period.

The court held that the omission of this conclusion from the formal order was an oversight and that Rule 59.06(1) permits amendment where the order does not accurately express the court’s manifest intention as reflected in the reasons for decision.

The court rejected arguments that the requested amendment was premature or an improper reconsideration of the earlier ruling.

The order was amended to include the finding regarding the special circumstances doctrine.

Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.

The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.

However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.

Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.

The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.

Following a decision on a special case in favour of the plaintiff, the parties reached a consensus on costs.

The Court of Appeal ordered costs of $15,000 inclusive of taxes and disbursements payable forthwith by Canada to the plaintiff.

In a class proceeding costs dispute following the dismissal of environmental contamination claims, the defendant brought a motion to strike portions of affidavits filed by a third-party fund administrator opposing payment of costs from the Class Proceedings Fund.

The challenged affidavits contained opinion evidence from non‑expert witnesses asserting that the litigation raised issues of public interest.

The court applied the principles governing admissibility of lay opinion evidence from R. v. Graat, distinguishing between admissible opinion grounded in factual observations and inadmissible speculation or legal opinion.

While the court permitted most of the opinion evidence as permissible lay opinion supporting observations about the public interest and access to justice, it struck limited portions that lacked factual foundation or amounted to speculation.