Douglas M. Worndl

This initial case conference for a proposed class action addressed the consolidation of two actions, the defendant Boeing Company's contemplation of a jurisdictional challenge, and the defendant Fly Jamaica Airways Ltd.'s apparent cessation of operations, with its insurer undertaking the defense.

A preservation notice was sent to Fly Jamaica.

The certification motion was scheduled for September 3, 2019.

The Plaintiffs in a class action sought court approval for a settlement agreement, a distribution plan, an honorarium for representative plaintiffs, and Class Counsel's fees and disbursements.

The class action, initiated in 2012, involved common law misrepresentation and statutory claims under the Ontario Securities Act for secondary market misrepresentations against SNC-Lavalin Group Inc. and its officers/directors.

After extensive litigation, including interlocutory motions, discovery, and two mediations, a settlement of $110 million was reached.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the complexities and risks of the litigation.

The distribution plan and honoraria for representative plaintiffs were also approved.

Class Counsel's fee request of $25.25 million (22.95% of the settlement) plus disbursements and taxes was approved, recognizing the significant risk undertaken and the results achieved.

Class counsel brought a motion for approval of their legal fees and disbursements following the settlement of a securities class proceeding for $29.5 million.

Counsel sought $5.9 million in fees based on a contingency agreement.

The court reviewed the factors for approving class counsel fees, noting the early settlement and the high hourly rates docketed.

The court reduced the requested fee, approving $2.775 million plus HST as fair and reasonable compensation for the risk assumed and results achieved, along with full recovery of disbursements.

The plaintiff moved for approval of a $29.5 million settlement in a securities class action against the defendants for alleged misrepresentations in continuous disclosure documents regarding mortgage origination practices.

The settlement also resolved a companion Ontario Securities Commission proceeding.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks, the complex damages calculations, and the immediate business implications for the corporate defendant.

The court also approved the Distribution Protocol, Notice Plan, and Claim Form, with minor modifications to extend the deficiency rectification period.

Following an omnibus motion in a secondary market securities class action, the defendants sought costs payable forthwith.

The plaintiffs and one co-defendant argued for costs in the cause.

The court ordered costs in the cause, noting that the omnibus motion involved novel legal issues and was part of the fabric of the whole litigation, making it fairest that the ultimate victor in the action receive the costs.

This decision addresses eight motions in a billion-dollar secondary market securities class action.

The court granted motions by SNC-Lavalin and its Outside Directors to strike paragraphs from the Plaintiffs' Amended Reply and dismissed the Plaintiffs' motion to deliver a Fresh as Amended Reply, finding that the Plaintiffs were attempting to plead a new, uncapped liability claim without leave and reintroduce previously rejected allegations of bribery in Libya.

The court also granted motions by the Outside Directors and Michael Novak to strike paragraphs from Riadh Ben Aïssa's Statement of Defence, which similarly attempted to introduce allegations of bribery in Libya and knowledge against co-defendants beyond the scope of the granted leave.

Additionally, the court granted protective orders for the examinations for discovery of Messrs.

Ben Aïssa, Duhaime, and Roy, who faced criminal charges, to protect their Charter rights and the integrity of criminal proceedings, but denied requests to stay or postpone discoveries.

The appellants commenced a proposed class action for damages for misrepresentations in a takeover bid circular under s. 131(1) of the Securities Act.

The motion judge ruled that plaintiffs must elect whether to sue the offeror or its directors/signatories, and that secondary market sellers could not rely on s. 131(1).

On appeal, the Court of Appeal held that s. 131(1) allows a plaintiff to sue both the offeror and its directors/signatories for damages.

However, the Court upheld the ruling that secondary market sellers cannot assert a claim under s. 131(1), as they must rely on the statutory cause of action in Part XXIII.1.

The defendant BCE Inc. brought a consent motion to discontinue a proposed class action concerning alleged secondary market misrepresentations.

The court found that the plaintiff's statutory and common law claims were statute-barred because no motion for leave had been brought within the applicable limitation periods.

As no purpose would be served by continuing the action and no prejudice would result, the court granted leave to discontinue the action without costs and without notice to the putative class members.

The appellants sought to amend their statement of claim in a securities class action to add further particulars of wrongful conduct underlying their misrepresentation claims against the corporate respondent.

The motion judge denied leave for most of the amendments, finding they constituted discrete misrepresentation claims requiring fresh leave under s. 138.8(1) of the Securities Act, and were statute-barred under s. 138.14(1).

The Court of Appeal upheld the motion judge's decision, with one limited exception permitting the appellants to plead a narrower omission allegation relating to previously pleaded facts.

In related securities class actions, the plaintiffs sought approval of a cy près distribution of residual settlement funds to the Canadian Foundation for Advancement of Investor Rights (FAIR Canada) and the discharge of the settlement administrator.

The remaining funds were too small to distribute economically to class members, making further direct compensation impracticable.

The court considered whether FAIR Canada was an appropriate recipient in light of concerns raised in prior jurisprudence about potential indirect benefits to class counsel.

Rejecting a strict disqualification approach, the court held that the proper test is whether a reasonable person would conclude that any real benefit accrues to counsel.

Finding no such benefit and a rational connection between the organization’s mandate and the interests of the class, the proposed cy près distribution was approved.

Following dismissal of the defendants’ motion for leave to appeal orders made in a class proceeding, the successful plaintiff sought costs exceeding $30,000 on a partial indemnity basis.

The court considered the complexity of the class action and the substantial materials filed but found the hourly rates claimed by counsel excessive.

The court also reduced photocopying disbursements due to unnecessary duplication.

The plaintiff was awarded reduced costs reflecting reasonable fees and adjusted disbursements.

The defendants sought leave to appeal orders granting the plaintiff leave under s. 138.8 of the Ontario Securities Act to pursue statutory misrepresentation claims and certifying the proceeding as a securities class action.

The proposed appeal challenged, among other issues, the treatment of U.S. SEC disclosure documents as potential “core documents” and the certification of a global shareholder class alongside a negligent misrepresentation claim.

The court held that the motions judge applied the correct “reasonable possibility of success” standard for statutory leave and was entitled to defer final determinations about the core/non-core document classification to trial.

The court also found no misapplication of appellate authority concerning certification of parallel statutory and common law claims.

As there was no good reason to doubt the correctness of the orders, leave to appeal was refused.

The plaintiffs brought a proposed securities class action for secondary market misrepresentation under Part XXIII.1 of the Securities Act, obtained leave under s. 138.1, and had the action certified.

They later moved for leave to amend their statement of claim to add new allegations of misrepresentation.

The defendants consented to amendments that merely expanded already-pleaded allegations but opposed the balance as fresh misrepresentation claims requiring a separate, and now time-barred, leave application.

The court held that leave under s. 138.8 is assessed against each discrete allegation of misrepresentation, so that the impugned amendments — alleging new bribery and code-of-ethics violations in multiple jurisdictions — were not mere elaborations but discrete claims requiring a fresh leave application.

The motion was granted in part: the consented amendments were allowed and the impugned amendments were refused.

The plaintiff sought certification of a securities class action asserting statutory secondary market misrepresentation claims, common law negligent misrepresentation, and oppression.

The court applied the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and held that a global class was appropriate for the statutory and oppression claims, and also for negligent misrepresentation, but only insofar as that claim overlapped with the misrepresentations for which leave had already been granted under Part XXIII.1 of the Securities Act.

Relying on appellate authority, the court refused to certify common issues based on inferred reliance and aggregate damages for negligent misrepresentation.

The court concluded that certification of all three causes of action in a single class proceeding was the preferable procedure, subject to narrowing the negligent misrepresentation claim.

The plaintiff sought clarification of a prior ruling on a motion for leave to commence a statutory cause of action for secondary market misrepresentation under Part XXIII.1 of the Securities Act.

The earlier decision granted leave for some alleged misrepresentations but dismissed others, including allegations relating to revenue recognition in the issuer’s 2008 financial statements.

The parties requested clarification regarding whether the alleged misrepresentation in the issuer’s October 14, 2009 Management’s Discussion and Analysis concerning revenue recognition had been determined.

The court held that although there was likely an internal control deficiency relating to revenue recognition at the time of the MD&A, there was no evidence that the deficiency, standing alone, was material.

Leave was therefore refused and the motion dismissed with respect to that alleged misrepresentation.

A shareholder sought leave under s. 138.8 of the Securities Act to commence a statutory secondary market misrepresentation action under s. 138.3 against a solar energy company and two of its officers.

The alleged misrepresentations concerned financial statements, internal control disclosures, and statements incorporated into a prospectus supplement.

The court held that the plaintiff demonstrated a reasonable possibility of success regarding alleged misrepresentations in the issuer’s original Q4 2009 financial statements and the October 2009 prospectus supplement, including related press releases and conference calls.

However, the plaintiff failed to establish sufficient evidence of misrepresentation in earlier 2009 interim financial statements or the 2008 revenue recognition disclosure.

Leave was granted in part and refused in part.

In a class proceeding relating to alleged misconduct involving a public corporation, the court addressed a correction to a prior costs decision.

The earlier reasons contained a factual error regarding the quantum of costs awarded to certain defendants on a motion to amend.

On consent of the parties, the court corrected the error and revised the amount payable.

The corrected award granted the defendants all‑inclusive costs for the amendments motion in a lower amount than originally stated.

Following an earlier decision dismissing a motion by the plaintiffs to amend their statement of claim and rejecting most of their requested changes to a discovery plan in a securities class action, the court addressed costs.

The defendants sought substantial partial indemnity costs for both the amendments motion and the discovery plan motion.

The court held that the amendments motion was a significant and high-stakes procedural dispute in complex class proceedings and that the defendants’ claimed costs were within the reasonable expectations of the losing party.

The court also found that the plaintiffs’ demands regarding the discovery plan were disproportionate and that the defendants were the successful party on that motion.

Costs were awarded to the defendants both for the amendments motion and, in any event of the cause, for the discovery plan motion.

Following the dismissal of a motion for leave to appeal, the successful defendants sought costs.

The plaintiff argued that costs should be in the cause of a forthcoming leave and certification motion, but the court rejected this position and held that costs should generally be determined at each stage of the proceeding.

The court also rejected the plaintiff’s submission that the defendants’ costs should be limited to the range the plaintiff would have sought had it succeeded.

Considering the rates of senior counsel and the parties’ costs outlines, the court fixed fair and reasonable costs payable by the plaintiff.

The plaintiff sought leave to appeal an interlocutory order dismissing a motion to compel answers and document production arising from a cross‑examination on an affidavit filed in a class proceeding certification motion.

The underlying dispute concerned whether defendants were required to answer questions relating to a proposed statutory cause of action under Part XXIII.I of the Ontario Securities Act when the affidavit had been filed only for purposes of certification under the Class Proceedings Act.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that leave to appeal requires either conflicting authority or good reason to doubt the correctness of the order, together with sufficient importance of the issue.

The court found neither conflicting decisions nor any basis to doubt the motion judge’s ruling that the refused questions were irrelevant to the certification motion.

Leave to appeal was therefore denied.