Daniel E. H. Bach

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.

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 defendant, United Parcel Service Canada Ltd., sought leave to appeal an order certifying a class proceeding under the Class Proceedings Act, 1992.

The proposed appeal challenged the certification of common issues relating to whether the defendant's brokerage fee practices constituted false or unconscionable representations, forced renegotiation of contracts, or breached requirements for future performance agreements under the Consumer Protection Act, 2002.

The Divisional Court found no conflicting decisions or good reason to doubt the correctness of the motion judge's certification order.

The motion for leave to appeal was dismissed.

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.

Following certification of a securities class action, the court determined the appropriate costs award arising from the leave and certification motions.

The moving parties sought more than $1.18 million in fees and disbursements on a partial indemnity basis.

The court emphasized the need for transparency, proportionality, and historical benchmarking when assessing certification-motion costs under Rule 57.01(1).

After adjusting excessive hourly rates and disbursements, and considering historical averages for comparable certification motions, the court fixed costs at $467,234 payable forthwith, with an additional $100,000 in disbursements payable in the cause.

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.

In a securities class proceeding, the plaintiffs sought costs following successful motions in which they opposed summary judgment and obtained nunc pro tunc relief permitting pursuit of a statutory claim despite the expiry of a limitation period under the Securities Act.

The defendants argued that no costs should be awarded due to alleged delay by the plaintiffs, the alleged unnecessary nature of the cross‑motion, and the claim that the plaintiffs succeeded on grounds not advanced by their counsel.

The court rejected these arguments, finding no delay attributable to the plaintiffs and confirming that the cross‑motion seeking nunc pro tunc relief was appropriate.

The court held that the plaintiffs succeeded on their arguments regarding the court’s nunc pro tunc authority and the interpretation of the Court of Appeal’s Timminco decision.

Applying the general rule that costs follow the event, the court awarded the plaintiffs their claimed partial indemnity costs.

The defendants moved for summary judgment to dismiss the plaintiffs' statutory claims for secondary market misrepresentation under the Securities Act, arguing the claims were statute-barred by the three-year limitation period in s. 138.14.

The plaintiffs had brought a motion for leave to assert the statutory claims within the limitation period, but the limitation period expired while the court's decision on the leave motion was under reserve.

The court held that it had inherent jurisdiction and authority under the Rules of Civil Procedure to grant the leave order nunc pro tunc (retroactively) to the date the leave motion was argued, applying the actus curiae maxim to prevent injustice caused by the court's delay.

The defendants' motion for summary judgment was dismissed, and the plaintiffs were permitted to amend their statement of claim effective the date the leave motion concluded.

In a class proceeding, the court determined costs arising from motions concerning the approval of the form, content, and timing of a certification notice and a motion by a class member to participate.

The participating class member was granted leave under s. 14 of the Class Proceedings Act to participate in the notice motion.

Although the plaintiffs succeeded on the timing of notice and the participating class member succeeded on participation, neither side was fully successful regarding the notice content, particularly concerning references to related U.S. proceedings.

The court held that class members who actively participate may be exposed to costs under s. 14(2), notwithstanding the protection for passive class members under s. 31.

However, given the novelty of issues concerning overlapping global class members and parallel U.S. proceedings, the court declined to award costs to any party.

The defendant sought leave to appeal an order certifying a class action regarding customs brokerage fees charged on international shipments.

The core issue for the leave motion was whether the motion judge erred in certifying as a common issue whether the brokerage services were 'unsolicited services' under the Consumer Protection Act, 2002, without considering the consignees' knowledge or consent.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's conclusion that consumer knowledge is irrelevant under section 13 of the Act, and noting that the issue is a matter of public importance.

The moving party sought court approval of a class action settlement alleging that the defendant utility breached s. 4 of the Interest Act by charging monthly interest on overdue accounts without disclosing the equivalent annual rate.

The proposed settlement provided approximately $5.8 million in compensation through refunds to certain class members, cancellation of excess interest charges, and cy près distributions to charitable organizations.

The court applied the established settlement approval criteria and concluded the agreement was fair, reasonable, and within the range of acceptable outcomes given litigation risks and administrative constraints.

The court also approved class counsel’s contingency fee of 25% of the recovery.

However, the request for a $2,500 honorarium for the representative plaintiff was denied because the circumstances did not meet the threshold of exceptional contribution.

The defendant brought a motion for directions to adjourn its motion for leave to appeal a class action certification order pending the disposition of its appeal of a summary judgment order to the Court of Appeal.

The plaintiffs brought a cross-motion to dismiss the leave motion for failing to name a hearing date.

The Divisional Court dismissed both motions, holding that the certification order frames the proceedings and the leave motion must be heard expeditiously before the summary judgment appeal.

The court declined to dismiss the leave motion on technical grounds and ordered it to be perfected and heard at the earliest opportunity.

The plaintiffs in an Ontario securities class action moved for approval of the notice of certification.

The lead plaintiff in parallel U.S. proceedings, who was also a member of the Ontario global class, moved to participate in the motion, arguing that the notice should be delayed and should include detailed information about the U.S. proceedings.

The court granted the U.S. plaintiff standing to participate but held that the notice of certification should be issued promptly to protect class members' litigation autonomy.

The court determined that the notice should inform class members of the existence of the U.S. proceedings but should not include detailed or comparative information, as that would be confusing and unnecessary at this stage.

The moving party brought a consent motion seeking certification of a securities class proceeding and leave to advance a secondary market misrepresentation claim under Part XXIII.1 of the Securities Act.

The claim arose after the issuer disclosed a prolonged fraud in a related loan business that required restatement of financial results.

The proposed class consisted of investors who acquired the issuer’s securities during a specified class period.

The court found that the criteria for certification under the Class Proceedings Act, 1992 were satisfied and that the statutory leave requirement under the Securities Act was met.

The court granted certification, granted leave to advance the statutory claim, and dismissed a parallel action against additional defendants pursuant to the parties’ procedural agreement.

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.