Daniel E. H. Bach

The applicant, a plaintiff in a proposed class action in British Columbia, sought a declaration that a sealing order issued in a related Ontario proceeding did not apply to an affidavit he had obtained from the public court record before the sealing order was formalized.

The respondents had inadvertently included confidential information in a publicly filed motion record.

The court dismissed the application, holding that the sealing order applied to the inadvertently disclosed information and that confidentiality could be restored since the applicant had not yet used or relied upon the information.

This decision approves a class action settlement and class counsel fees in a case involving optionally retrievable inferior vena cava filters.

The class action alleged that the defendants failed to properly warn of increased risks of complications.

The settlement provides for a claims-made pool for significant claims and a second pool for administration, notice, and legal fees.

The court found the settlement fair, reasonable, and in the best interests of the class, considering the litigation risks and complexity.

Class counsel's requested fees, which were less than their docketed time, were also approved as reasonable given the results achieved and risks undertaken.

The representative plaintiffs in a certified class action against Cook (Canada) Inc., Cook Incorporated, and William Cook Europe APS moved for court approval of a notice plan for a proposed settlement.

The class action concerned optionally retrievable inferior vena cava filters.

The court reviewed the proposed short-form and long-form notices and the dissemination plan, finding them compliant with the Class Proceedings Act, 1992.

The motion for approval of the notice plan was granted.

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.

This class action is in the settlement administration phase.

Class Counsel sought an order appointing Doug Mitchell as a bilingual arbitrator to assess appeals filed by class members regarding claims administrator decisions, as contemplated by the court-approved Administration Protocol.

The court granted the motion, finding Mr. Mitchell qualified and his appointment consistent with the fair and expeditious determination of class member appeals under section 12 of the Class Proceedings Act, 1992.

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.

Class Counsel brought a motion for approval of a further instalment of fees in an ongoing competition law class action regarding alleged price-fixing in the foreign exchange market.

The plaintiffs had settled with fourteen groups of defendants and the action continued against the remaining non-settling defendants.

The court reviewed the risks undertaken, the results achieved, and the docketed time, finding the requested fees of $6,325,000, plus costs and disbursements, to be fair and reasonable.

The fee request was approved.

The plaintiffs in a class action regarding foreign exchange price fixing brought a motion to amend the Distribution Protocol for the $110 million settlement proceeds.

The proposed amendments included transferring unused funds from the Indirect Claims Fund to the Direct Claims Fund, setting a minimum $1,000 payout for approved Direct Claimants, and removing the requirement to consider compensation received in other jurisdictions.

The court granted the motion, finding the amendments were administrative, imposed no additional burden on the defendants, and fell within the court's broad discretion under section 12 of the Class Proceedings Act, 1992.

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.

In a class action where core negligence claims were dismissed on appeal and the remaining "knowing assistance" claim was conceded as having no prospect of success, the action was formally dismissed.

The defendant auditor sought $485,000 in costs for defending the action.

The Law Foundation of Ontario (LFO), which funded the plaintiff through the Class Proceeding Fund, resisted this amount, arguing that previous costs awards covered the merits.

The court found the defendant was entitled to costs for the "knowing assistance" claim but deemed the requested amount excessive.

Applying a 40% discount to the plaintiff's estimated actual costs for this component, the court awarded $68,000 for the action and an additional $4,000 for the costs motion, totaling $72,000, payable by the LFO/CPF to the defendant.

The Plaintiffs sought partial indemnity costs and disbursements totaling $1,391,715.45 following a successful, but partially limited, certification motion in a class action against several financial institutions.

The Defendants argued for a significant reduction, citing their substantial success in narrowing the class definition and potential double recovery from prior settlements.

The court awarded the Plaintiffs $700,000 in legal fees and HST, payable forthwith, and ordered disbursements of $468,705.06 payable in the cause.

The reduction in fees reflected the Defendants' success in streamlining the class action and reducing their potential liability, which the court deemed important for the integrity of the class actions regime and to discourage overambitious claims, without constituting a distributive costs award.

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.

The appellants appealed the dismissal of their motion to certify a class proceeding involving product liability claims against the manufacturers of an inferior vena cava (IVC) filter.

The Divisional Court upheld the motion judge's finding that the pleadings failed to disclose a reasonable cause of action for defective design because they did not identify a specific alternative design.

However, the court allowed the appeal in part, finding that regulatory advisories provided 'some basis in fact' to certify the common issue of whether the defendants breached their duty to warn learned intermediaries of the risks associated with the filters.

The representative plaintiffs and class counsel sought approval of a $21 million settlement in two certified class actions concerning allegedly defective transvaginal mesh devices.

They also sought approval of class counsel fees, disbursements, a distribution protocol, and honoraria for the representative plaintiffs.

The court found the settlement, distribution plan, and fee requests to be fair, reasonable, and in the best interests of the class.

The motion was granted, approving the settlement, the distribution protocol, class counsel fees of approximately $4.17 million, and honoraria for the representative plaintiffs.