Charles M. Wright

In a proposed class proceeding, the plaintiffs sought court approval of a third party litigation funding agreement that would bind the plaintiffs and class members.

Notice of the agreement was provided to the defendants and large shareholder members of the class, and no party opposed the motion.

The court considered prior jurisprudence regarding litigation funding agreements and noted that the proposed agreement contained a scaled and capped commission structure addressing concerns previously raised about third party funding arrangements.

The court found the agreement consistent with the principles articulated in earlier cases and noted it represented a cost saving compared with the Class Proceedings Fund.

The agreement was approved.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.

Invesco sought leave to appeal orders sanctioning a Plan of Compromise and Reorganization under the CCAA and approving a settlement that released Ernst & Young LLP from claims arising from its auditing of Sino-Forest Corporation.

The Court of Appeal denied leave, finding that the proposed appeals failed to meet the stringent test for leave in CCAA proceedings.

The appeal of the Sanction Order was moot, and the issues regarding the third-party release in the Settlement Order were governed by the court's prior decision in ATB Financial.

The defendants brought a motion for leave to appeal an order certifying the plaintiff's action regarding allegedly defective organic asphalt shingles as a class proceeding.

The defendants argued that the claims for negligent design and negligent manufacture should have been pleaded separately, that there was no common defect, and that the claim for pure economic loss could not succeed.

The Divisional Court dismissed the motion, finding no conflicting decisions or reason to doubt the correctness of the certification order, and emphasizing the flexibility of the class proceedings process.

The Ontario Plaintiffs brought a motion for approval of a $117 million settlement and release of claims against Ernst & Young LLP within the CCAA restructuring of Sino-Forest Corporation.

Several institutional investors objected, arguing that the settlement improperly extinguished their opt-out rights under the Class Proceedings Act and that the third-party release was not justified under the CCAA.

The court approved the settlement and release, finding them fair, reasonable, and rationally related to the restructuring plan.

The court held that claims compromised within a CCAA proceeding do not afford opt-out rights, and the settlement provided a substantial benefit to stakeholders.

The plaintiffs brought a motion for approval of a North American-wide class action settlement regarding alleged deficiencies in the defendant's organic shingles warranty program.

The settlement enhanced the warranty, provided an independent appeal process, and had no monetary limit or expiration date.

The court found the settlement was fair, reasonable, and in the best interests of the class members, noting the arm's length negotiations, early resolution, and lack of objections.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.

The moving party sought certification of a national class proceeding alleging that organic asphalt roofing shingles manufactured by the defendants were defective and prone to premature failure.

Claims were advanced in negligence and under various provincial consumer protection statutes, asserting that the shingles failed prematurely and exposed homeowners to risks such as water penetration, mould, and structural damage.

The defendants opposed certification on the grounds that the claim disclosed only pure economic loss, that no common defect existed across the products, and that individual remedies were preferable.

The court held that the pleadings disclosed viable causes of action, that expert evidence provided some basis in fact for a common defect, and that the proposed class and common issues met the statutory requirements under s. 5 of the Class Proceedings Act, 1992.

A class proceeding was found to be the preferable procedure given the small individual claims and the efficiency of resolving common issues collectively.

The plaintiffs sought certification of a price‑fixing class action for settlement purposes against certain chocolate manufacturers and approval of a settlement with one defendant.

The action alleged a conspiracy to fix, maintain, or stabilize prices of chocolate confectionery products in Canada, contrary to competition law.

The court considered the requirements for certification under the Class Proceedings Act, 1992 and approved certification for settlement purposes, noting that common issues and preferable procedure criteria were satisfied.

The court further approved a $5.3 million settlement with the settling defendant, including cooperation provisions and a most‑favoured‑nation clause, finding the compromise fair, reasonable, and in the best interests of the class.

An interim class counsel fee award of $800,000 inclusive of disbursements and tax was approved, subject to possible adjustment depending on future settlements.

The moving parties in a proposed securities misrepresentation class proceeding sought court approval of a third‑party litigation funding agreement prior to certification.

The proposed agreement provided that the funder would pay certain disbursements and indemnify the plaintiffs against adverse costs in exchange for a capped commission from any settlement or judgment.

The court considered the developing law on litigation funding, including concerns about champerty and maintenance, and confirmed that such agreements are not categorically unlawful but require judicial approval.

Finding that the agreement preserved counsel’s independence, protected defendants through security for costs, and promoted access to justice, the court approved the funding arrangement.

The moving party sought court approval of a class action settlement alleging that the defendant utility breached s. 4 of the Interest Act by charging monthly interest on overdue accounts without disclosing the equivalent annual rate.

The proposed settlement provided approximately $5.8 million in compensation through refunds to certain class members, cancellation of excess interest charges, and cy près distributions to charitable organizations.

The court applied the established settlement approval criteria and concluded the agreement was fair, reasonable, and within the range of acceptable outcomes given litigation risks and administrative constraints.

The court also approved class counsel’s contingency fee of 25% of the recovery.

However, the request for a $2,500 honorarium for the representative plaintiff was denied because the circumstances did not meet the threshold of exceptional contribution.

Three competing groups of plaintiffs and their respective counsel brought carriage motions seeking to represent a class of investors who suffered losses following a massive decline in the value of Sino-Forest Corporation's securities.

The court evaluated the competing actions based on factors including the definition of class membership, class period, theory of the case, causes of action, joinder of defendants, and prospects of certification.

The court stayed the Smith and Northwest actions and granted carriage to the Labourers action, finding its approach to the class definition, causes of action, and joinder of defendants to be the most cohesive and in the best interests of the class.

The plaintiff attended a mandatory training program to become a licensed sales representative for the defendant.

After completing the program, she signed a contract containing an arbitration clause.

She later brought a proposed class action claiming the defendant failed to pay minimum wage during the training period under the Employment Standards Act.

The defendant moved to stay the action under s. 7(1) of the Arbitration Act, 1991.

The Court of Appeal upheld the motion judge's dismissal of the stay, finding that the arbitration clause applied only to disputes arising from the relationship created by the contract, not the pre-contractual training relationship.

On a motion to quash an appeal, the moving party argued that a refusal to stay a class proceeding under the Arbitration Act, 1991 was unappealable under s. 7(6) and, in any event, interlocutory.

The court held that where the motions judge determined the arbitration agreement did not govern the dispute, the matter fell outside s. 7 and the statutory appeal bar did not apply.

The court further held that an order refusing a stay pending arbitration was final because it conclusively determined the forum and deprived the responding party of the substantive right to resolve the dispute by negotiation and arbitration.

The motion to quash was dismissed with costs.