Douglas Worndl

The plaintiffs brought actions against Ukraine International Airlines (UIA) under the Montreal Convention following the shoot-down of Flight PS752 by Iranian military surface-to-air missiles shortly after takeoff from Tehran.

UIA admitted the shoot-down was an 'accident' under the Convention, making it strictly liable, but sought to limit its liability by proving it was not negligent in allowing the flight to depart.

The Superior Court of Justice found that UIA failed to meet the standard of care for a reasonable airline operating in or near a conflict zone, as it did not conduct a proper security threat risk assessment or any safety risk assessment, and failed to gather available intelligence or brief the flight commander.

The court held that UIA failed to prove its negligence did not cause the passengers' deaths or that the harm was too remote, resulting in unlimited liability for the airline.

The plaintiffs brought a motion to approve a $125 million settlement in a class action against a major bank for secondary market misrepresentation related to subprime mortgage investments.

The plaintiffs also sought approval of class counsel fees of $37.5 million, representing a 30% contingency fee.

The court found the settlement to be fair and reasonable, noting the significant litigation risks the plaintiffs faced, including a due diligence defence and challenges to damages calculations.

The court also approved the requested counsel fees, emphasizing the substantial risk undertaken by class counsel over 14 years of litigation and the excellent result achieved for the class.

The plaintiffs sought early production of an investigation report from the defendants to determine whether there was an evidentiary basis to serve two John Doe defendants located in Mexico.

The defendants opposed the request, arguing that the normal discovery process under the Rules of Civil Procedure should be followed.

The court agreed with the defendants, holding that the plaintiffs could not compel early production to avoid the ordinary costs risks of litigation.

The plaintiffs were ordered to serve the remaining defendants within 60 days.

The plaintiff brought a proposed class action against Aphria Inc., its directors/officers, and several underwriters, alleging misrepresentations in both the primary and secondary markets regarding two corporate acquisitions.

The plaintiff sought leave to discontinue certain claims, leave to assert secondary market claims under the Securities Act, and certification of the class action.

The court granted the discontinuances and leave for the secondary market claims, certifying them on consent.

For the primary market claims against the underwriters, the court held that the 'Ragoonanan Principle' still applies in Ontario, meaning a representative plaintiff must have a direct cause of action against each defendant.

Since the plaintiff only purchased shares in the secondary market, it could not represent primary market purchasers.

However, the court conditionally certified the primary market claims, giving class counsel 100 days to recruit an eligible representative plaintiff who purchased shares in the prospectus offering.

The Quebec Plaintiffs and the Defendants brought motions for leave to appeal an order of Belobaba J. dated November 21, 2019.

The Divisional Court dismissed both motions for leave to appeal.

Costs of $2,500 were ordered payable by each of the moving parties to the responding Ontario Plaintiffs.

The Ontario Plaintiff moved to quash the Quebec Plaintiff's appeal of an order dismissing a motion to stay the Ontario class action.

The Court of Appeal held that the refusal to stay the Ontario Action is an interlocutory order, not a final order, because it does not determine any substantive right to relief or substantive defence.

As the order is interlocutory, the appeal lies to the Divisional Court with leave, not to the Court of Appeal.

The appeal was quashed for lack of jurisdiction.

Two competing teams of legal counsel sought carriage of a proposed securities class action against CannTrust Holdings Inc. and other defendants for alleged misrepresentations regarding unlicensed cannabis production.

The court granted carriage to the Consortium team, finding that the competing TGF/RG team had a disqualifying conflict of interest because they excluded RBC Dominion Securities Inc., a current client of one of the firms, as a defendant.

The court held that excluding a necessary defendant to prefer a client's interests prejudiced the proposed class members by reducing potential recovery.

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.

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 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.

The plaintiff brought a motion to compel the defendants to answer questions and produce documents refused during cross-examination on an affidavit filed in response to a certification motion in a proposed securities class proceeding.

The dispute concerned the interpretation of s. 138.8(2) of the Ontario Securities Act, which governs affidavit evidence on a motion for leave to commence a statutory secondary market misrepresentation claim under Part XXIII.1.

The plaintiff argued that because the defendants filed an affidavit addressing certification, they should be required to answer questions relevant to the leave motion.

The court followed the line of authority beginning with Ainslie v. CV Technologies Inc. holding that defendants are only required to file an affidavit if they intend to lead evidence on the leave motion.

As the defendants had intentionally filed no affidavit addressing the leave motion, they could not be compelled to answer questions for that purpose.

In a proposed securities class action arising from the collapse in value of a publicly traded corporation’s shares following accounting audit issues, the plaintiffs sought an order permitting substituted service of motion materials on foreign-resident defendants in China.

The request was urgent due to a potential limitation period expiry for secondary market misrepresentation claims under Part XXIII.1 of the Ontario Securities Act.

Although China is a signatory to the Hague Service Convention and ordinarily requires service through its central authority, the court held that substituted service remained available where defendants had attorned to Ontario’s jurisdiction or appointed an agent for service in Canada.

The court found that the defendants’ roles as officers and directors of an Ontario corporation and their submissions to Ontario securities regulatory processes established sufficient connections to Ontario.

The court concluded that the plaintiffs had taken reasonable steps to locate and serve the defendants and that substituted service was reasonably likely to bring the proceeding to their attention.

In a proposed class action for alleged misconduct in the primary and secondary securities market, the defendant corporation was unresponsive to proceedings.

The insurers of the corporation's officers and directors brought a motion on behalf of the corporation to appoint a receiver to defend the claims.

The plaintiffs and other defendants did not oppose the appointment.

The court found it fair, just, and necessary to appoint a receiver and granted the order.