Eric S. Block

The plaintiffs in a proposed class action for secondary market misrepresentation sought leave to appeal a decision quashing their summonses to two Manulife employees and refusing to compel the defendants to file affidavits on the upcoming leave motion under s. 138.8 of the Securities Act.

The Divisional Court dismissed the application for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision, which followed established jurisprudence that defendants are not required to deliver affidavits or be subjected to cross-examination if they do not intend to lead evidence on the leave motion.

The appellant commenced an application for oppression relief under the Canada Business Corporations Act, supported by an affidavit from an individual who lacked direct knowledge and was unavailable for cross-examination.

When the appellant attempted to substitute the affidavit after the respondents had filed their responding materials, the motions judge struck the application as an abuse of process, with leave to re-introduce it upon payment of costs thrown away.

The Court of Appeal dismissed the appeal, finding the motions judge was entitled to infer prejudice and properly exercised his discretion.

The appellant's action was dismissed by the motion judge for failure to post security for costs in accordance with a Master's order.

The appellant appealed the dismissal.

The Court of Appeal dismissed the appeal, noting that the appellant had not appealed the Master's order, had not complied with it, and had adduced no evidence of his alleged impecuniosity.