James C. Tory

The plaintiffs, having successfully appealed the dismissal of their class action as time-barred and obtained certification and leave to proceed, sought costs on a partial indemnity basis for the certification and leave motions.

The defendants argued for a significant reduction, citing an "indulgence" (nunc pro tunc order), costs for required steps, limitation period issues, expert reports, divided success, and comparable cases.

The court rejected the defendants' arguments, emphasizing the extraordinary nature of the case, the public interest in access to justice for complex class actions, and the substantial success achieved by the plaintiffs.

The court awarded the plaintiffs the full amount of costs claimed, $2,679,277.82, payable by the Canadian Imperial Bank of Commerce.

The plaintiff sought to certify a securities class action against BlackBerry and its former executives for alleged misrepresentations in financial statements relating to smartphone revenue recognition.

The defendants did not oppose certification except regarding the inclusion of Nasdaq purchasers in a 'global class'.

The court certified the class action for TSX purchasers, finding the requirements of s. 5(1) of the Class Proceedings Act were met, and adjourned the 'global class' issue to be determined on a future forum non conveniens motion.

The plaintiff sought leave under s. 138.8 of the Securities Act to pursue a statutory secondary market misrepresentation claim arising from the defendant issuer’s accounting treatment of smartphone sales.

The motion concerned whether the issuer’s use of sell‑in revenue recognition for a newly launched product violated GAAP and whether a later news release constituted a public correction of the alleged misrepresentation.

The court held that the plaintiff had presented credible expert evidence establishing a reasonable possibility that the accounting treatment materially misstated revenues.

The court further articulated principles governing the “public correction” requirement under s. 138.3 and concluded that the issuer’s subsequent disclosure of a shift to sell‑through accounting and a large inventory charge was reasonably capable of revealing the alleged earlier misrepresentation.

Leave to proceed with the statutory claim was therefore granted.

The plaintiffs sought leave under s. 138.3 of the Securities Act and certification under the Class Proceedings Act to pursue a class action against CIBC and its senior officers for alleged secondary market misrepresentations concerning CIBC's exposure to the U.S. residential mortgage market.

The court found that the plaintiffs met the test for leave and certification for the statutory claim.

However, applying the Court of Appeal's recent decision in Sharma v. Timminco Limited, the court held that the statutory claim was time-barred because leave was not obtained within the three-year limitation period under s. 138.14 of the Securities Act.

Consequently, both motions were dismissed.