Garth Myers

This is a costs decision following the respondent's successful appeal of orders certifying an action as a class proceeding and granting leave to proceed under the Securities Act.

The respondent sought $120,000 in total costs ($20,000 for the Divisional Court leave to appeal motion and $50,000 for each of two appeals to the Court of Appeal).

The court awarded $70,000 in total costs ($20,000 for the leave to appeal and $50,000 for the appeals), finding that while there were technically two separate appeals, the issues and arguments were inextricably bound together in substance.

Two consolidated appeals concerning the interpretation of leave provisions in certification orders for class actions relating to trailing commissions paid to mutual fund managers.

The appellants (mutual fund managers) argued that new class actions commenced by different plaintiffs on behalf of different classes should have required leave under the certification orders because they related to the same subject matter.

The motion judge and Court of Appeal held that the leave requirement applied only to proceedings by the certified class members and parties to the original actions, not to new plaintiffs seeking to represent different classes.

The court dismissed the appeals, affirming that the leave provisions were limited in scope to the parties and class members bound by the original certification orders.

In this putative securities class action arising from alleged misconduct by the former CEO of Endeavour Mining, the plaintiffs moved for an order requiring defendants to deliver statements of defence and produce insurance information by November 21, 2025.

The defendants opposed both requests, arguing that no statement of defence is required before leave to proceed is granted under the Securities Act, and that insurance information disclosure is premature.

The court dismissed both aspects of the motion, finding that prior to OSA leave being granted, the statutory claim is a nullity and therefore no defence is required, and that insurance disclosure is premature absent settlement discussions or leave being granted.

This appeal concerns the certification of a class proceeding and the granting of leave to proceed with a secondary market misrepresentation claim under the Securities Act.

The respondent, a former shareholder of Akumin Inc., sought to certify a class action on behalf of purchasers of Akumin securities (common shares and secured notes) alleging misrepresentations in financial statements and seeking relief under both statutory provisions and common law negligence.

The appellants challenged both the leave order and the certification order, arguing that certain disclosures did not constitute "public corrections" that an efficient market requirement applied to secondary market claims, and that common law negligence claims should not be certified alongside statutory claims.

The Court of Appeal upheld the motion judge's decisions, clarifying the law on public corrections, rejecting an efficient market requirement, and confirming that common law claims can be certified alongside statutory claims.

The moving parties sought leave to appeal a decision granting the responding party leave to commence an action under s. 138.8 of the Securities Act.

The Divisional Court granted leave to appeal, identifying specific questions regarding whether the motions judge erred in holding that the Court of Appeal erred in a previous decision, and whether such an error rendered the decision unsafe.

Costs of the motion were fixed at $20,000, payable in the discretion of the appeal panel.

The plaintiff brought a motion for leave to commence a secondary market securities class action under Part XXIII.1 of the Securities Act against Akumin Inc., its directors and officers, and its auditor, Ernst & Young LLP, and for certification of the action under the Class Proceedings Act.

The claims arose from alleged misrepresentations in Akumin's financial statements that were later restated.

The court granted leave against the Akumin defendants, finding a reasonable possibility of success at trial regarding the alleged misrepresentations and public corrections.

However, the court denied leave against the auditor, EY, finding insufficient evidence that the auditor's statements were material or publicly corrected.

The court certified the action as a global class proceeding against the Akumin defendants, rejecting arguments to exclude American purchasers from the class.

The Ad Hoc Committee of Aleafia Health Inc. Debentureholders brought an urgent motion to lift the stay of proceedings under section 69.3(1) of the Bankruptcy and Insolvency Act.

The purpose was to allow them to issue a Statement of Claim against Aleafia and its directors/officers for negligent misrepresentation, specifically to pursue recovery under Aleafia's insurance policies before a limitation period expired.

The Trustee in Bankruptcy did not oppose the motion.

The court granted the motion, finding no prejudice to creditors or Aleafia, but made the order conditional on no opposition being received from the Office of the Superintendent of Bankruptcy (OSB) by a specified date, as the OSB had not been initially served.

The plaintiff in a putative class action sought leave to discontinue the action pursuant to s. 29 of the Class Proceedings Act, 1992.

The claim alleged that the defendants, including Emerge Canada Inc., violated working capital requirements and improperly pre-paid management fees.

The defendants were subsequently wound up, had no assets, and no insurance to satisfy a judgment.

The Class Proceedings Fund also denied funding for the action.

The court granted the motion for discontinuance, finding that the class would not be prejudiced given the lack of recovery prospects and the remaining limitation period for individual claims.

A notice plan for putative class members was approved.

This is an appeal from the Divisional Court, which upheld a certification judge's decision that a class action claim for breach of fiduciary duty against investment advisors did not disclose a cause of action.

The Court of Appeal for Ontario examined whether the claim adequately pleaded an ad hoc fiduciary relationship, considering factors beyond just professional rules.

The Court found that the lower courts erred by narrowly interpreting the pleading, and that the claim, taken as a whole, sufficiently pleaded vulnerability, trust, reliance, and discretion, in addition to breaches of professional standards.

The appeal was allowed, declaring that the claim did disclose a cause of action for breach of a class-wide fiduciary duty, and the matter was remitted for redetermination of other certification criteria.

Following the dismissal of the main class action on its merits and the exhaustion of appeals, the defendant requested an endorsement confirming that its 74 dormant third party claims were deemed dismissed.

The court converted the case conference into a motion under s. 12 of the Class Proceedings Act, 1992.

Finding that an omnibus dismissal was fair, avoided unnecessary expense, and served the administration of justice, the court granted the request and ordered the third party claims dismissed.

Three law firms brought competing carriage motions to represent a class of shareholders of Canopy Growth Corporation in a securities misrepresentation class action.

The court evaluated the competing claims under s. 13.1(4) of the Class Proceedings Act, 1992.

The court granted carriage to the Dziedziejko action, finding that its longer class period, which included thousands of additional shareholders based on prior financial misrepresentations, better served the goals of access to justice and behaviour modification without sacrificing efficiency.

The competing Leonard and Twidale actions were stayed.

In this proposed class action, the plaintiffs sought leave to proceed under the Securities Act and certification as a class action under the Class Proceedings Act, 1992, against Kew Media Group Inc. for statutory and common law misrepresentation.

The alleged misrepresentations concerned Kew's financial health and compliance.

Kew consented to the orders.

The court granted leave to proceed and certification, defining the class and common issues, and appointed plaintiffs' counsel as class counsel.

The plaintiff sought certification of a proposed securities class action under the Ontario Securities Act, alleging misrepresentation by the defendants regarding the value of Cronos Group Inc. shares.

The defendants opposed certification and brought a forum non conveniens motion to stay claims of non-Canadian shareholders who purchased shares on the NASDAQ exchange, arguing these shareholders were already covered by a parallel U.S. class action.

The court granted certification for the proposed class, including U.S. shareholders, and dismissed the defendants' forum non conveniens motion, emphasizing Ontario's jurisdiction and the policy of access to justice.

The appellant, a representative plaintiff in a class action, appealed the dismissal of his motion to certify a class action against Olympia Trust Company.

The action alleged that Olympia Trust, as a custodial trustee for syndicated mortgage loans (SMLs) held in registered savings accounts, breached trust and fiduciary duties by failing to ensure the SMLs were "qualified investments" under the Income Tax Act.

The motion judge found it plain and obvious that the claims for breach of trust and fiduciary duty could not succeed, and that other certification criteria were not met.

The Court of Appeal upheld the motion judge's decision, confirming that the Income Tax Act provisions and the Declaration of Trust did not impose the extensive "gatekeeping" or "watchdog" duties alleged by the appellant on Olympia Trust.

The appeal was dismissed with costs.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

The appellant sought leave to bring a class action against Cronos Group Inc. and others for alleged misrepresentations in public filings.

The motion judge dismissed the leave and certification motions, characterizing the claim as alleging thousands of separate misrepresentations and finding insufficient evidence of individual materiality.

The Court of Appeal found this characterization erroneous, holding that the claim alleged one central misrepresentation regarding inflated revenues.

The Court determined there was a reasonable possibility of success, given the admitted misrepresentations, subsequent corrections, and share price drops, despite conflicting expert evidence on causation.

The appeal was allowed, leave granted, and the certification issue remitted to the Superior Court.

The moving party brought a motion for leave to appeal an unreported order dated April 11, 2022.

The Divisional Court dismissed the motion for leave to appeal without costs.

The plaintiff brought a motion to certify a class action against a trust company that acted as the trustee for registered savings accounts through which class members invested in syndicated mortgages.

The syndicated mortgages, promoted by a third-party developer, failed, resulting in significant losses.

The plaintiff alleged the trust company breached trust, fiduciary, contractual, and common law duties by failing to ensure the mortgages were fully secured and qualified investments under the Income Tax Act.

The court dismissed the certification motion, finding it plain and obvious that the pleadings disclosed no reasonable cause of action, as the trust company did not undertake the alleged gatekeeper duties.

The court also found the proposed omnibus class action failed the common issues, preferable procedure, and representative plaintiff criteria.

The defendant in a proposed class action brought a motion to strike the plaintiff's expert evidence filed in support of certification.

The proposed class action alleged the defendant trust company breached its duties regarding syndicated mortgages held in registered savings accounts.

The court granted the motion to strike the expert's evidence in its entirety, finding the expert was not qualified, lacked independence, acted as a partisan advocate, and improperly provided legal argument and opinions on ultimate issues beyond his expertise.