David DiPaolo

The court issued a file direction/order in a long-standing class action concerning alleged market timing by mutual funds.

The order set a peremptory trial date for January 10, 2022, for a maximum 40-day trial, conditional on the parties approving a detailed Trial Agenda by September 30, 2021.

The judge emphasized the need for the action to be genuinely ready for trial and for the Trial Agenda to be strictly adhered to, subject to judicial leave for variations.

The plaintiffs sought leave to appeal a costs decision where the motion judge ordered each party to bear their own costs of a certification motion due to the novelty of the issues under s. 31(1) of the Class Proceedings Act.

The plaintiffs argued that s. 31(1) should operate asymmetrically in favour of plaintiffs and not shield unsuccessful defendants from costs.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no serious reason to doubt the correctness of the motion judge's decision, as there is no rule requiring s. 31(1) to be applied asymmetrically.