David Andrew Hausman

The plaintiffs appealed the dismissal of their motion to certify a class action against several discount brokers regarding the receipt of mutual fund trailing commissions.

The motion judge had found no basis in fact for the core proposed common issue of whether the receipt of such commissions contravened applicable Canadian securities law prior to their explicit prohibition in 2022.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the 'some basis in fact' test, properly concluded that all pleaded causes of action relied on the allegation of illegality, and appropriately held the plaintiffs to their strategic concession that the entire action would fail if the core issue was not certified.

The Ontario Securities Commission (OSC) brought a motion seeking an order for the issuance of Letters of Request in Commissions under section 152 of the Securities Act.

The OSC required evidence from two individuals, one residing in British Columbia and one in Massachusetts, USA, for a proceeding before the Capital Markets Tribunal concerning Bridging Finance Inc. and its respondents.

The respondents did not oppose the motion.

The court granted the order, finding that the proposed witnesses had relevant evidence and that the Letters of Request and Commissions accorded with Rule 34.07(2) of the Rules of Civil Procedure.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The plaintiffs in a class action against Kew Media Group Inc. and several individual defendants sought consent orders to streamline the litigation.

The corporate defendant was in insolvency proceedings with a stay in place.

The plaintiffs agreed to discontinue the action against five individual defendants, hold the case in abeyance against two others, and toll applicable limitation periods.

The court granted the consent orders for discontinuance, leave to proceed under the Securities Act, and certification under the Class Proceedings Act against the remaining individual defendants, finding the agreements made the case more efficient without adversely affecting class members.

The plaintiffs in a proposed securities class action brought a motion for approval of a third-party Adverse Costs Indemnity and Funding Agreement with Camac Partners LLC.

The agreement provided up to $800,000 in adverse costs indemnity and $125,000 in disbursement funding in exchange for 10% of the net recovery, capped at $4 million.

The defendants did not oppose the motion.

The court approved the agreement, finding its terms fair, reasonable, and necessary to provide access to justice for the plaintiffs and the proposed class.

The defendants, TD Waterhouse Canada Inc. and The Toronto-Dominion Bank, brought a motion to strike several paragraphs from the plaintiff, David G. Durno's, Statement of Claim.

The grounds for the motion were that the disputed claims failed to disclose a reasonable cause of action and constituted an abuse of process or an improper collateral attack on Durno's settlement agreement with the Investment Industry Regulatory Organization of Canada (IIROC) and IIROC's approval decision.

The plaintiff argued that his claims for breach of employment contract were not a collateral attack on the settlement, as he was not relitigating admissions but seeking damages for the defendants' alleged failure to supervise and alert him to regulatory concerns.

The court dismissed the defendants' motion, finding that the disputed claims related to a breach of contract and did not constitute an abuse of process or a collateral attack.

The appellant, a major unitholder in a real estate investment trust, sought declarations that the trust's trustees were removed from office by written consents and therefore lacked authority to close a private placement.

The application judge dismissed the application, finding that even if the consents were valid, the trustees continued in office until replaced and acted within the ordinary course of business by closing the previously agreed-upon private placement.

The Court of Appeal dismissed the appeal, declining to interpret the hypothetical effect of the written consents and agreeing that the trustees were contractually bound to close the transaction, which constituted acting within the ordinary course of business.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal found no error in the reasons of the lower court judge and dismissed the appeal, fixing costs at $1,000.