Dana M. Peebles

The plaintiff in a proposed class action moved to introduce Pension Information Committee Reports from 1998 to the present as late-filed evidence, after cross-examinations had been completed.

The defendants objected but suggested that if the reports were admitted, the annual pension statements for the same years should also be admitted.

The court applied the test for late-filed evidence, finding the documents relevant, non-prejudicial as they were the defendants' own records, and reasonably omitted initially.

The court granted the motion, admitting both the reports and the annual statements in the interests of justice.

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.

This appeal concerns a proposed $2.5 billion class action involving more than 230,000 universal life insurance policies sold by Metropolitan Life Insurance Company between 1985 and 1998.

The plaintiffs alleged misrepresentation in the sale of policies and breach of contractual duties relating to premiums and fees.

The motions judge dismissed the certification motion for misrepresentation claims and initially declined to certify breach of contract claims.

The Court of Appeal allowed the appeal in part, certifying the breach of contract common issues and allowing the plaintiffs to pursue individual misrepresentation claims.

The court found the motions judge erred in principle by failing to conduct individualized and contextual analyses of the limitation period defences and by improperly deciding the merits of the breach of contract claims at the certification stage.

In a securities misrepresentation class action, the defendants brought a motion to strike the plaintiffs' reply expert report, delivered by Andrew M. Mintzer, in its entirety.

The report, initially intended to address causation, expanded to cover liability, contravening the agreed timetable and the rule against case-splitting.

The court granted the defendants' motion, striking the report but allowing the plaintiffs leave to file a new affidavit from Mr. Mintzer strictly confined to the issue of causation, as originally agreed.

The court emphasized the importance of adhering to timetables and the rule against case-splitting, particularly in leave motions under the Ontario Securities Act, which serve a gatekeeper function.

This decision addresses a scheduling dispute in a proposed class action concerning the Bell Canada Pension Plan.

The defendants sought to have their motion to stay the class action, arguing that the Office of the Superintendent of Financial Institutions (OSFI) was the preferable forum, heard before the certification motion.

The plaintiff opposed this, requesting both motions be heard concurrently.

The court, applying the Cannon factors and principles against litigation by installments, denied the defendants' request, directing that the stay motion be heard together with the certification motion, emphasizing that the preferability of jurisdiction is an issue best determined within the certification context.

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 plaintiffs in a competition law class action regarding price-fixing of lithium-ion batteries brought a motion for consent certification for settlement purposes against two groups of defendants, NEC and Samsung.

The plaintiffs and the settling defendants reached settlement agreements and agreed on a plan for disseminating the notice of hearing for settlement approval.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were met in the settlement context and granted the motion to certify the action for settlement purposes.

The plaintiffs brought a motion to approve the settlement of a securities misrepresentation class action against Canada Lithium Corp. and its directors and officers.

The corporate defendant had become insolvent and the only remaining asset was a wasting directors and officers insurance policy.

The parties agreed to settle the action for $400,000, which would be paid entirely to class counsel for fees and disbursements, with no distribution to class members.

The court approved the settlement and the fee request, finding that further litigation would only deplete the insurance policy and that the settlement was fair, reasonable, and in the best interests of the class under the circumstances.

This motion concerned the approval of a class action settlement and class counsel fees following a data breach at Home Depot.

The court approved the settlement, finding it fair and reasonable given the low likelihood of success for class members.

However, the court denied honoraria for representative plaintiffs and significantly reduced the requested class counsel fees from $406,800 to $120,000, emphasizing that fees must be proportionate to the actual benefit received by the class members, which was valued at approximately $400,000.

The appellant sought leave to bring a class action for secondary market misrepresentation under the Securities Act, alleging the respondent company's public disclosures overstated mining resources and inflated its share price.

The motion judge dismissed the leave application and the certification motion, finding the appellant's expert evidence was completely undermined by the respondent's evidence.

On appeal, the appellant argued the motion judge applied an overly strict test by weighing the evidence.

The Court of Appeal dismissed the appeal, holding that the statutory leave test requires a reasoned consideration and weighing of all evidence proffered by both parties to ensure the action has a reasonable possibility of success.

The plaintiffs and defendants both sought leave to appeal an order certifying a class action regarding an alleged global price-fixing conspiracy in the lithium-ion battery industry.

The plaintiffs sought leave to appeal the denial of certification for claims relating to unlawful means conspiracy and umbrella purchasers.

The defendants sought leave to appeal the certification of the civil remedy claim under s. 36 of the Competition Act.

The Divisional Court granted the plaintiffs' motion for leave to appeal, finding conflicting decisions and that the issues merited appellate attention.

The defendants' motion for leave to appeal was denied, as they failed to establish conflicting decisions or reason to doubt the correctness of the certification order.

The defendants moved to temporarily stay two related securities misrepresentation actions: an individual action (Vaeth Action) and a proposed class action (Johnson Class Action).

The court granted the temporary stay, finding irreconcilable conflicts of interest for the shared counsel (Morganti Legal) representing both the individual plaintiffs (who intended to opt-out of the class action) and the representative plaintiff of the class action.

The court also found independent reasons to stay the individual action to avoid multiplicity of proceedings and ensure judicial economy, pending the certification and leave motions in the class action.

Following dismissal of a proposed securities class action leave motion under s. 138.8 of the Securities Act and certification under the Class Proceedings Act, the court determined the appropriate costs award.

The successful defendants sought nearly $900,000 based on partial recovery of actual legal fees, while the plaintiff argued for a substantially reduced award grounded in access-to-justice concerns.

The court held that the costs protocol developed for certification motions does not apply to leave motions, which function as a robust merits-based screening mechanism and often involve extensive evidentiary records.

Applying the hourly rate grid and Rule 57.01 factors, the court reduced certain disbursements but rejected the plaintiff’s lower estimate.

The court fixed all-inclusive costs at $500,000 payable to the defendants.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

The representative plaintiff brought a motion for certification for settlement purposes and approval of a class action settlement concerning shipping charges paid by consumers returning defective video game controllers under warranty.

The settlement provided $20 reimbursement to approximately 400 customers and honoraria to the representative plaintiffs.

The court approved the settlement as fair and reasonable under the Class Proceedings Act, 1992.

However, the court strongly criticized class counsel’s fee arrangement, which lacked a written retainer or contingency agreement and relied solely on recovering legal fees from the defendant through settlement.

Applying the statutory requirement that legal fees be fair and reasonable and proportionate to the results achieved, the court reduced the requested fees and awarded $30,000.

The plaintiff sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act to bring a class action against a mining company for secondary market misrepresentation.

The plaintiff alleged that the company's public disclosures regarding mineral production and grade levels were false, as purportedly revealed by a subsequent technical report and anonymous short-seller internet postings.

The court dismissed the motion, finding that the plaintiff failed to show a reasonable possibility of success at trial because the defendants' uncontroverted expert evidence explained that the discrepancies between the reports were due to different reporting parameters, not misrepresentations.

The defendants sought leave to appeal two interlocutory orders compelling their witness to answer questions refused on cross-examination and refusing to vary the initial order.

The court found that the first category of questions was moot because the witness had already answered them without condition.

The court also held that the defendants failed to satisfy the test for leave to appeal under Rule 62.02(4) for both categories of questions, as there were no conflicting decisions and the issues were not of such importance to warrant leave.

The motion for leave to appeal was dismissed.

The moving defendants sought leave to appeal to the Divisional Court from a certification order in a class proceeding alleging a price‑fixing conspiracy in the market for polyether polyol products.

The motion argued that the pleadings were deficient, that the motions judge failed to review evidence supporting the proposed common issues, and that the plaintiff’s economist lacked the required expertise.

The court held that certification judges are entitled to deference and that the certification stage requires only some basis in fact that certification criteria are met, not proof of the underlying conspiracy.

Reading the certification reasons contextually, the court concluded that the motions judge had considered the applicable principles and that there was no serious doubt as to the correctness of the order.

The moving defendants therefore failed to satisfy the leave test under Rule 62.02(4).

The plaintiff in a proposed securities class action sought leave to appeal an interlocutory order that dismissed his motion for preemptive document production under Rule 30.04.

The motions judge had found the production request to be an overbroad fishing expedition prior to cross-examinations on a motion for leave to proceed under the Securities Act.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the original order, which properly prevented premature discovery.

The plaintiff, a former shareholder of the corporate defendant, brought motions for leave to commence a secondary market liability action under the Securities Act and for certification as a class proceeding.

The defendants filed affidavits opposing the motions.

The plaintiff served requests to inspect hundreds of confidential documents mentioned in the affidavits under Rule 30.04(2) prior to cross-examinations.

The court dismissed the motion, finding that the requests lacked specificity, relevance, and proportionality, and that allowing such a fishing expedition would undermine the statutory gatekeeping purpose of the Securities Act leave provisions.