Daniel E. H. Bach

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.

Plaintiffs' counsel brought a motion seeking court approval of their contingency fee retainer agreement, class counsel fees, disbursements, and an honorarium for the representative plaintiff, Soheil Kafai, following a class action settlement.

The court considered factors for reasonableness of fees, including complexity, risk, responsibility, monetary value, importance to the class, skill, results, and opportunity cost.

The court approved the retainer agreement, fees, disbursements, and a $1,000 honorarium for the representative plaintiff, finding them fair and reasonable.

The plaintiffs sought court approval for a class action settlement and allocation plan concerning a Hepatitis A contamination recall of frozen fruit.

The court approved the $3,000,000 settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, lack of significant objections, and risks of continued litigation.

The plan allocated funds across four categories: purchasers, immunized members, bodily injury members, and family members/health insurers.

The plaintiffs in a proposed class action brought a pre-certification pleadings motion to replace a representative plaintiff and add Scarsview Motors Ltd. as a defendant, intending to certify a defendant class of FCA dealers.

Scarsview resisted its addition, arguing prejudice and unsuitability as a representative.

The court granted the plaintiffs' motion, finding the causes of action against Scarsview properly pleaded and its addition necessary to preserve potential remedies related to implied warranties.

The court deferred Scarsview's affidavit evidence regarding prejudice and unsuitability to the certification stage, emphasizing that such issues are best addressed on a proper record at certification, not on a pleadings motion.

Costs were awarded to the plaintiffs.

The appellant successfully appealed a summary judgment in a class proceeding.

The motion judge had found that the auditor owed a duty of care to the investor clients of Buckingham Securities regarding the audit of Form 9 reports filed with the Ontario Securities Commission.

The Court of Appeal reversed this decision, finding no duty of care was owed despite the auditor's negligence.

The appeal addressed the application of the Anns/Cooper test for establishing duty of care.

The court awarded the successful appellant costs on a partial indemnity basis.

A class action was brought against an auditor for negligently auditing Form 9 reports filed with the Ontario Securities Commission that falsely confirmed a securities dealer's compliance with segregation and minimum capital requirements.

The dealer subsequently failed and investors lost millions.

The motion judge granted summary judgment for the class, finding the auditor owed a duty of care.

The Court of Appeal reversed, holding that no duty of care existed because there was insufficient proximity between the auditor and the class members.

The class members never saw or knew of the Form 9 reports, made no representations to them, and the interposition of the OSC and the dealer between the auditor and the class rendered the relationship too remote.

This motion concerned the approval of an Administration Protocol and a Distribution Protocol for the net proceeds of court-approved settlements in an ongoing class action alleging a conspiracy among financial institutions to fix prices in the foreign exchange (FX) market.

The court reviewed the proposed protocols, which differentiated between direct and indirect claimants, allocated funds (80% direct, 20% indirect), and incorporated expert analysis for damage calculation, conversion ratios, and liquidity factors.

The court found the protocols to be fair, reasonable, and in the best interests of the class, approving them without objection.

This is a counsel fee approval motion in an ongoing competition law class action.

Class counsel sought approval for an additional $13.7 million in fees, bringing the total to approximately $19.7 million, representing an 18.5% contingency fee or a 3.8 multiplier on docketed time, based on $107 million in settlements achieved to date.

The court considered factors such as risk, complexity, skill, and results, and assessed the degree of success as 19% of the estimated damages.

The court found the requested fee to be unreasonable and reduced the additional fee to $7 million, resulting in a total fee of $13 million, representing a 12% contingency fee or a 2.5 multiplier.

The court emphasized the need to balance incentives for class counsel with the access to justice principles of the Class Proceedings Act, 1992, and to avoid overcompensating counsel, which could disincentivize further robust litigation against non-settling defendants.

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 plaintiff, Barry Lavender, representing a class of investors, moved for summary judgment on five common issues in a class action against Miller Bernstein LLP, the auditor of a defunct securities dealer, Buckingham Securities.

The class members suffered $10.6 million in losses due to Buckingham's failure to segregate client assets and maintain minimum capital, which the defendant auditor negligently failed to report in Form 9s filed with the Ontario Securities Commission (OSC).

The court applied the Anns-Cooper analysis to establish a duty of care owed by the auditor to the class members, finding sufficient proximity and foreseeability, and no concerns of indeterminate liability.

The court found that Buckingham was required to segregate assets and failed to do so, and that the defendant breached its duty of care, causing damages.

However, the court could not determine the quantum of damages on a class-wide basis from the evidence presented.

The Superior Court of Justice approved a $69 million settlement in a securities class action against Manulife Financial Corporation, along with the plan of allocation, honoraria for representative plaintiffs, class counsel's contingency fees, and a preliminary commission for a third-party litigation funder.

The court found the late-stage settlement to be fair and reasonable, considering the extensive litigation and identified risks, including compelling evidence of market understanding of Manulife's hedging practices, a reasonable investigation defense, arguments against corrective disclosure, the impact of the economic crisis, and the dismissal of a parallel U.S. action.

This decision concerns a resumed certification motion for a proposed class action against Boston Scientific Ltd. and Boston Scientific Corporation regarding transvaginal mesh medical devices.

The plaintiffs, Susan and Darin Vester, alleged negligent design and failure to warn.

Following an initial adjournment due to a lack of common issues, new expert evidence was presented demonstrating a "some-basis-in-fact" for common issues related to the degradation of the polypropylene mesh (HGX-030-01) and the inadequacy of warnings in the Directions For Use (DFU).

The court found that the new evidence sufficiently identified a discrete defect common to all devices and a plausible medical theory of harm, satisfying the common issues and preferable procedure criteria.

The motion to certify the class action was granted.

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.

The plaintiffs sought leave to appeal an interlocutory costs order in a securities misrepresentation class action.

The motion judge had ordered the defendant to pay 50% of the costs forthwith and 50% in the cause, while disallowing disbursements that had already been paid by settling defendants.

The Divisional Court dismissed the motion for leave to appeal, finding that the plaintiffs failed to satisfy the tests under Rule 62.02(4)(a) or (b).

The court emphasized the high degree of deference owed to discretionary costs orders, particularly those made by an experienced case management judge in a complex class proceeding.

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 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 appellant courier company appealed a class action certification order, arguing the motions judge erred in certifying a common issue regarding whether its customs brokerage services were 'unsolicited' under the Consumer Protection Act.

The appellant contended that determining whether services were unsolicited required an individualized inquiry into each consumer's knowledge and intent.

The Divisional Court dismissed the appeal, finding the claim was systemic and based on standard form contracts that did not mention brokerage fees, meaning the issue could be determined on a common basis without individualized inquiries.

On a refusals motion arising from a pending leave motion under Part XXIII.1 of the Securities Act, the court considered the proper scope of cross-examination and documentary production under s. 138.8.

The court reiterated that pre-leave examinations are narrower than discoveries and are intended to prevent speculative securities claims from turning into discovery-like rummaging through corporate and non-party records.

One question directed to a mine planner about his understanding of any accelerated introduction of cement grout support packs was ordered answered because it went to the central factual dispute.

All other disputed questions were upheld as refused on grounds of irrelevance, overbreadth, improper documentary discovery, or litigation privilege.

In a leave application under Part XXIII.1 of the Securities Act alleging failure to disclose a material change in mining operations, the parties brought competing motions to strike expert and fact affidavits.

The respondents sought to strike the applicant’s mining expert affidavit on the basis that it improperly opined on legal issues, relied on false assumptions, and lacked independence.

The applicant sought to strike several fact and expert affidavits filed by the respondents, arguing they violated Rule 39.01(5), relied on hearsay, and attempted to shield witnesses from cross-examination.

The court held that expert evidence may rely on second-hand information and that Rule 39.01(5) does not govern admissibility of expert opinion.

The alleged conflicts and factual disputes affected weight rather than admissibility.

Both motions to strike were dismissed and no costs were awarded.