Daniel Bach

Three law firms brought competing carriage motions to represent a class of shareholders of Canopy Growth Corporation in a securities misrepresentation class action.

The court evaluated the competing claims under s. 13.1(4) of the Class Proceedings Act, 1992.

The court granted carriage to the Dziedziejko action, finding that its longer class period, which included thousands of additional shareholders based on prior financial misrepresentations, better served the goals of access to justice and behaviour modification without sacrificing efficiency.

The competing Leonard and Twidale actions were stayed.

The plaintiff brought a motion to discontinue a proposed class action in Ontario regarding illnesses allegedly caused by the herbicide Gramoxone.

The plaintiff, a resident of British Columbia, preferred to proceed as a class member in a parallel action in British Columbia.

The defendants opposed the discontinuance, arguing it was a tactical move to avoid litigating in Ontario.

The court granted the discontinuance with prejudice, finding no prejudice to putative class members and noting that the defendants' concerns could be addressed through costs.

The court awarded the defendants costs of $71,807.32 on a partial indemnity scale.

The proposed representative plaintiffs sought leave under s. 138.8 of the Securities Act to commence a secondary market misrepresentation claim against Maxar Technologies Inc. and its directors/officers, alleging failures to properly impair assets and recognize revenue under IFRS.

The court excluded the plaintiffs' expert evidence on IFRS due to lack of qualifications and impartiality, and struck portions of their reply evidence as impermissible case-splitting.

Relying on the defendants' admitted expert evidence, the court found no credible evidence that Maxar's financial statements contained material misrepresentations.

The motion for leave was dismissed as there was no reasonable possibility of success at trial, and the related certification motion was consequently dismissed.

The plaintiffs brought a motion for court approval of four settlements totaling over $25 million with TD, RBC, Credit Suisse, and Deutsche Bank in a class action alleging price-fixing in the foreign exchange market.

The plaintiffs also sought approval of Class Counsel's fees of approximately $10.2 million.

The court found the settlements to be fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the substantial results achieved.

The court also approved the requested Class Counsel fees, recognizing the risk undertaken and the successful outcome.

The plaintiffs brought a motion to certify the action as a class proceeding for settlement purposes against TD, RBC, Credit Suisse, and Deutsche Bank in a case alleging a conspiracy to fix prices in the futures exchange market.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion, approving the settlement agreements and the plan of dissemination.

Following the dismissal of the plaintiffs' motion for certification in an emissions defeat device class action, the successful defendants sought costs totaling $965,012 on a partial indemnity basis.

The plaintiffs argued for a maximum award of $125,000, noting their own costs were $550,263.

The court fixed costs at $560,000 all-inclusive on a partial indemnity scale, finding this amount fair and reasonable given the complexity of the issues, the number of defendant groups, and the costs reasonably incurred by the plaintiffs themselves.

The plaintiffs brought a motion to certify a class action against the defendants regarding an alleged emissions defeat device in certain diesel-engine vehicles.

The defendants had already initiated a recall to repair the defeat device at no cost, rendering the vehicles compliant with emissions regulations.

The court dismissed the certification motion, finding that the plaintiffs failed to provide any evidence of compensable harm, such as paying a premium price or experiencing reduced fuel economy post-repair.

Without compensable harm, the court held that a class action would not advance the goals of access to justice, behaviour modification, or judicial economy.

Class counsel moved for approval of an interim fee award and disbursements following a $250,000 settlement with the Bank of Montreal defendants in a class action.

The court reviewed the requested fees of $62,500 (25% of the settlement) and disbursements of $119,800.83, plus taxes.

Applying the factors for assessing the reasonableness of class counsel fees, the court found the request fair and reasonable and approved the fee award.

The plaintiffs brought a motion to approve a settlement with the Bank of Montreal (BMO) defendants in a class action alleging a conspiracy to fix prices in the foreign exchange market.

The settlement amount was $250,000.

The court found that the case against BMO was significantly weaker than against other defendants, as BMO's trading operations accounted for less than 1% of the market and no regulatory findings had been made against it.

The court concluded that the settlement was fair, reasonable, and in the best interests of the class, and approved the settlement agreement.

The plaintiffs brought a motion to certify a class action against several banks for allegedly conspiring to fix prices in the foreign exchange market.

The court found that the plaintiffs satisfied the five criteria for certification under the Class Proceedings Act, 1992, but modified the class definition to exclude indirect purchasers (investors) and direct purchasers who transacted with non-defendant banks.

The court certified the action for direct purchasers who transacted with the defendant banks.

Following the dismissal of the defendants' motion on the basis of forum non conveniens, the Litigation Trust and the Class sought costs.

The court awarded the Class $6,000 on a partial indemnity basis for maintaining a watching brief.

The court awarded the Litigation Trust full indemnity costs of $208,590.73, finding that the defendants' motion was captured by the Standstill Agreement between the parties, which provided for full indemnity costs in the event of a breach.

In a proposed class action alleging price-fixing in the foreign exchange market, the plaintiffs sought to add BMO and TD as defendants.

BMO and TD argued the claims were statute-barred.

On cross-examination for the joinder motion, the plaintiffs' deponent refused to answer questions about a settlement proffer from another defendant, which the plaintiffs claimed was the source of discovering the claims against BMO and TD.

BMO and TD brought a motion to compel answers.

The court ordered the deponent to answer the questions, finding that the evidence was relevant to rebutting the presumption of discovery under the Limitations Act, 2002, and that any privilege attaching to the proffer had been waived when the plaintiffs voluntarily relied on it.

Following a summary judgment motion in a class proceeding where the plaintiff succeeded on four of five common issues, the plaintiff sought an elevated partial indemnity costs award of $1,287,296.

The defendant argued for partial indemnity costs capped at $500,000 due to divided success.

The court rejected the elevated scale, applied the recommended Grid rates for hourly fees, and reduced the fees by one-quarter to reflect the divided success.

Costs were fixed at $775,000 all-inclusive, payable within 30 days.

The applicant sought leave to commence a class action under s. 138.8 of the Securities Act, alleging the respondent mining company failed to disclose a material change regarding the introduction of cement grout pack supports which allegedly caused a decline in production.

The court reviewed the evidence, including expert reports and fact witness affidavits, and found that the overwhelming weight of the evidence demonstrated that cement grout packs were not introduced during the relevant quarter.

Applying the Supreme Court of Canada's threshold test from Theratechnologies, the court concluded the proposed action had no reasonable prospect of success at trial and dismissed the motion for leave.

In a proposed pharmaceutical products liability class action concerning the anticoagulant drug Pradaxa®, the defendants sought production of additional medical records of the proposed representative plaintiffs prior to the certification motion.

The plaintiffs resisted, arguing certification is a procedural step and that extensive medical disclosure was unnecessary and intrusive at the pre‑certification stage.

The court held that the scope of pre‑certification disclosure depends on the nature of the particular class action and that, in a drug‑related products liability claim alleging serious adverse effects, more detailed medical evidence was relevant to the certification criteria.

The court concluded it was apparent from the pleadings that limited records confirming ingestion of the drug were insufficient.

Production of the requested medical records was therefore ordered.

The plaintiffs sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act to bring an action against Manulife Financial Corporation and its former executives.

The plaintiffs alleged that the defendants misrepresented the adequacy of Manulife's risk management practices and failed to disclose its massive unhedged exposure to equity market risk prior to the 2008 financial crisis.

The court granted leave, finding a reasonable possibility of success at trial, and certified the action as a class proceeding, certifying seven common issues.

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 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 court issued an endorsement to settle the terms of a certification order in a securities class action, following the certification of conspiracy claims.

The defendants sought to exclude 'early sellers' from the class definition and challenged the class period dates.

The court declined to exclude early sellers, finding it premature as the scope of those entitled to relief for conspiracy was uncertain.

The court also approved the class period dates as they aligned with the plaintiff's theory of the case.

Finally, the court approved the plaintiff as a suitable representative for both primary and secondary market purchasers regarding the conspiracy claim.