Dana M. Peebles

Following a major appellate decision regarding the tolling of limitation periods in securities class actions, the successful parties in two of the appeals sought their costs.

The opposing parties argued for reduced costs on the basis of public interest, over-lawyering, and the fact that the court had overruled its own prior jurisprudence.

The Court of Appeal rejected these arguments, finding the claimed amounts to be fair and reasonable given the complexity and significance of the proceedings.

Costs of $151,250 and $100,000 were awarded to the respective successful parties on a partial indemnity scale.

The plaintiff sought to certify a class action against the Dow defendants for an alleged price-fixing conspiracy in the market for polyether polyol products.

The court reviewed the requirements for certification under the Class Proceedings Act, 1992, in light of recent Supreme Court of Canada jurisprudence on indirect purchaser claims.

The court found that the pleadings disclosed a cause of action, there was an identifiable class, common issues existed with a plausible methodology for proving class-wide loss, a class action was the preferable procedure, and the plaintiff was a suitable representative.

The motion for certification was granted.

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 sought leave to appeal a case management judge's order that amended the definition of an Ontario global class by removing members who participated in a court-approved settlement of parallel U.S. proceedings.

The plaintiffs argued the judge lacked jurisdiction, was barred by issue estoppel, and erred in recognizing the U.S. settlement without evaluating its merits.

The Superior Court of Justice dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no palpable or overriding errors in the motion judge's exercise of discretion or application of international comity principles.

The applicant company sought an order to terminate a supplementary retirement plan trust fund and have the remaining assets distributed to it.

The trust fund was established to ensure employees transferred from a predecessor company would not be adversely affected regarding their pension entitlements.

The trustee refused to consent to the termination, citing a lack of evidence that the participants had received their full entitlements.

The court dismissed the company's application, finding that at least one participant had demonstrated a shortfall, and directed the trustee to obtain actuarial calculations for other participants before any remaining balance could be returned to the company.

The representative plaintiff in a certified class proceeding sought court approval of a settlement and approval of class counsel fees under the Class Proceedings Act, 1992 following a cyber‑attack on the defendants’ PlayStation Network and related online services that allegedly compromised personal information and interrupted access.

The settlement provided cash payments for unused account balances, online service benefits, and reimbursement of up to $2,500 for proven identity theft losses.

Notice of certification and settlement was distributed to millions of account holders and resulted in minimal opt-outs and no objections.

The court considered the applicable factors for settlement approval in class proceedings and concluded the agreement was fair, reasonable, and in the best interests of the class.

The requested class counsel fee of $265,000 was also approved as reasonable in light of the risk and work undertaken.

The defendants and proposed defendants sought leave to appeal a motion judge's ruling on a Rule 21 motion, an order certifying the proceeding as a class proceeding, and an order granting the plaintiffs leave to commence an action under the Securities Act.

The court granted leave to appeal the Rule 21 motion in relation to the pleadings of negligence and negligent misrepresentation, noting that two recent Supreme Court of Canada decisions created a correctness and conflict issue.

Consequently, leave to appeal the certification order was also granted.

Furthermore, the court granted the proposed defendants leave to appeal the order allowing proceedings against them under the Securities Act, finding good reason to doubt the correctness of the motion judge's determination that they were de facto officers of the Income Fund.

The plaintiff appealed the judgment of the motion judge.

The Court of Appeal dismissed the appeal, agreeing with the motion judge's reasons.

Leave to appeal the costs order was refused, and costs of the appeal were awarded to the respondent in the amount of $15,000.

The defendant doctor moved for leave to appeal two interlocutory decisions dismissing his motion for summary judgment in a medical malpractice action.

The motions judge had allowed the plaintiff to file a late affidavit without complying with language requirements and had dismissed the summary judgment motion despite the plaintiff failing to file any expert medical report.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the orders and that the proposed appeal involved matters of importance, including the necessity of expert evidence in medical malpractice cases and the application of the limitation period.

The appellants appealed an order striking out their proposed class action statements of claim for oppression against the respondents.

The claims alleged that a recapitalization plan was oppressive to minority shareholders.

The Court of Appeal dismissed the appeal, finding the claims failed to disclose a reasonable cause of action because the prospectus explicitly warned of the financial risks, the recapitalization plan benefited the company by preventing immediate collapse, and the appellants failed to plead any specific loss or damage.

The parties agreed on the costs of the appeal and the motion for leave to appeal.

The Court of Appeal fixed the costs at $15,000, inclusive of disbursements and GST, to be paid by the appellant to the respondents jointly and severally.

The appellant sought to certify a class action against life insurance companies for allegedly deceptive sales of 'premium offset' or 'vanishing premium' policies.

The motions judge and Divisional Court refused certification, finding that the claims required individual assessments of the unique sales experiences and representations made to each policyholder.

The Court of Appeal dismissed the appeal, holding that the proposed common issues did not represent a substantial ingredient of each class member's claim and that a class proceeding was not the preferable procedure due to the overwhelming individual issues.

The appellants appealed the dismissal of their motions to certify their actions as class proceedings against life insurance companies regarding the sale of 'premium offset' or 'vanishing premium' policies.

The Divisional Court upheld the motions judges' decisions, finding that the claims were intrinsically individualistic, based on individual representations by agents, and lacked common issues necessary for class certification.

The appeals were dismissed.

The plaintiff, an amateur boxer who suffered a brain injury, sued several defendants.

After pleadings were closed and discoveries commenced, the Public Guardian and Trustee was appointed as litigation guardian and retained new counsel.

The new counsel moved to extend the time for filing a jury notice, which was granted by the master and upheld on appeal.

The defendants appealed to the Divisional Court.

The majority dismissed the appeal, finding no error in principle, no unconscionable delay, and no real possibility of prejudice to the defendants.

A dissenting judge argued that the current case law on late jury notices is flawed and should be changed.