J. Peter Coll

The plaintiff appealed the dismissal of its motion to certify a global class action against an Ontario accounting firm for negligence and negligent misrepresentation in an audit report.

The Divisional Court (majority) upheld the motion judge's decision, finding no palpable and overriding error in the conclusion that joinder was the preferable procedure and that Ontario lacked a real and substantial connection to the claims of the foreign investors.

The appeal and a motion for leave to appeal costs were dismissed.

A dissenting judge would have allowed the appeal and certified the class action.

Following dismissal of a certification motion in a proposed securities-related class proceeding, the court addressed a dispute regarding a disbursement claimed by the successful defendant for expert opinion evidence on American securities law.

The plaintiff argued the expert evidence was premature and unnecessary at the certification stage and should not be recoverable as a cost.

The court held that obtaining expert advice regarding potential application of American law was reasonably within the contemplation of the parties given the large number of American investors in the proposed class.

The court concluded that the expert opinion’s utility was tied to the certification motion and had no meaningful future value following refusal of certification.

The disbursement was therefore recoverable immediately along with agreed partial indemnity costs.