James C. Tory

Staff of the Ontario Securities Commission and the CIBC Dealers entered into a settlement agreement regarding inadequacies in the dealers' systems of controls and supervision.

These inadequacies resulted in certain clients paying excess fees on mutual funds, structured notes, exchange-traded funds, and closed-end funds held in fee-based accounts.

The CIBC Dealers self-reported the issues, cooperated with Staff, and agreed to a compensation plan estimated at $73,260,104 for affected clients, along with voluntary payments of $3,000,000 to the Commission and $50,000 for costs.

The Commission approved the settlement agreement, finding it to be in the public interest.

The CIBC Dealers self-reported inadequacies in their systems of controls and supervision that resulted in certain clients paying excess fees.

Staff of the Ontario Securities Commission and the CIBC Dealers entered into a Settlement Agreement.

The Commission approved the Settlement Agreement, noting the CIBC Dealers' prompt self-reporting, cooperation, implementation of a compensation plan estimated at $73.2 million for affected clients, and voluntary payments of $3 million to the Commission and $50,000 for costs.

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.

Following a major appellate decision regarding the tolling of limitation periods in securities class actions, the successful parties in two of the appeals sought their costs.

The opposing parties argued for reduced costs on the basis of public interest, over-lawyering, and the fact that the court had overruled its own prior jurisprudence.

The Court of Appeal rejected these arguments, finding the claimed amounts to be fair and reasonable given the complexity and significance of the proceedings.

Costs of $151,250 and $100,000 were awarded to the respective successful parties on a partial indemnity scale.

In three related securities class action appeals, the court reconsidered whether a statutory secondary-market misrepresentation claim under s. 138.3 of the Securities Act is time-barred unless leave is obtained within the s. 138.14 limitation period.

The court overruled Timminco and held that, for purposes of s. 28 of the Class Proceedings Act, 1992, the statutory claim is asserted when the representative plaintiff pleads the statutory cause of action, the supporting facts, and an intention to seek leave within a timely commenced class proceeding.

The court also upheld the motion judge's interpretation of the s. 138.8 leave standard as screening out hopeless claims, while holding that the Green certification decision erred in failing to consider certifying common negligent misrepresentation issues other than reliance.

The plaintiffs' appeal in Green was allowed in part and the defendants' appeals in Silver and Celestica were dismissed.

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.

Mercer International Inc. applied to the Ontario Securities Commission for a simultaneous hearing with the Québec Bureau de décision et de révision to consider whether AbitibiBowater's take-over bid for Fibrek Inc. should be cease traded.

The Commission acknowledged it had jurisdiction to hear the application, as Fibrek is a reporting issuer in Ontario and the bid affected Ontario shareholders.

However, the Commission declined to exercise its jurisdiction, noting that the Bureau was already seized of the matter, the applicable securities laws were substantially similar, and a simultaneous hearing would not advance the harmonization and co-ordination of securities regulatory regimes.

The application was dismissed.

The appellants appealed a summary judgment dismissing their claim for indemnification under a commercial agreement due to failure to provide timely notice.

The Court of Appeal upheld the motion judge's interpretation that the 18-month notice requirement was a condition precedent to the right of indemnity.

The Court also rejected the argument that the notice provision was void under section 22 of the Limitations Act, 2002, holding that a contractual notice requirement does not vary or exclude a statutory limitation period, but rather acts as a condition precedent for a cause of action to accrue.

The appellant appealed a summary judgment dismissing his claim for damages against the respondents for breach of contract.

The appellant had an agreement with the deceased respondent granting him an option to purchase a valuable painting upon the deceased's death.

The deceased sold the painting before his death, breaching the contract.

The motion judge dismissed the claim on the basis that the appellant failed to prove he had the financial means to exercise the option.

The Court of Appeal allowed the appeal, finding that the motion judge erred by assuming the role of a trial judge and that there were genuine issues for trial, including the proper option price and whether the appellant needed to show he had the means to purchase the painting.

The appellants, minority shareholders of Asbestos Corporation Limited, commenced an action in Ontario in 1987 for an oppression remedy and other relief following the takeover of the corporation by the Province of Quebec.

The appellants did not pursue the Ontario action until 2003, after exhausting five other proceedings in different forums.

The motion judge dismissed the action for delay and, in the alternative, stayed it on the basis of forum non conveniens and abuse of process.

The Court of Appeal upheld the motion judge's decision, finding no error in her conclusions that the delay was inexcusable, Quebec was the more appropriate forum, and the attempt to relitigate issues already decided elsewhere constituted an abuse of process.

The appellant appealed an order staying its Ontario proceedings on the basis of forum non conveniens.

The appellant argued the motion judge failed to apply the 'clearly establish' test from Amchem and improperly allowed the avoidance of multiple proceedings to trump other Muscutt factors.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the heavy burden test and comprehensively weighed all relevant factors in determining that New York was the more appropriate forum.

The applicants, minority shareholders of Sterling Centrecorp Inc., applied to the Ontario Securities Commission for an order under sections 104 and 127 of the Securities Act.

They sought to exclude the votes of certain shareholders who had signed support agreements from the 'majority of the minority' approval required for a going private transaction under OSC Rule 61-501, arguing these shareholders were 'joint actors' with the acquiring insiders.

The Commission found that one major shareholder, a former member of the acquisition group, was a joint actor and ordered his votes excluded.

However, the Commission concluded that the other supporting shareholders were not joint actors merely by virtue of signing the support agreements.

As the transaction still achieved the requisite majority of the minority approval even after excluding the joint actor's votes, the Commission declined to cease trade the transaction or require a new shareholder meeting.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

Following the release of the court's reasons for judgment, the appellant requested a reconsideration of part of the decision.

The Court of Appeal declined to change the reasons for judgment.

Costs were fixed in favour of the respondents in the amount of $17,808.35 plus GST.

The respondents purchased condominium units as tax-sheltered investments, with the purchase price allocated between land/construction and services.

When the vendor failed to deliver title, the respondents sought compensation from the Ontario New Home Warranty Program.

The Program argued the contract was severable and refused to compensate for the services portion.

The Court of Appeal held that the agreements constituted a single contract for the provision of a home at fair market value, entitling the respondents to compensation for the full purchase price.

The Court also clarified that prejudgment interest is payable out of the guarantee fund at the rate prescribed by the Condominium Act, not the Courts of Justice Act.

The appellant appealed an order made under the Canada Business Corporations Act to the Divisional Court.

The court held that under s. 249 of the Act, an appeal lies to the Court of Appeal for Ontario, not the Divisional Court.

The appeal was dismissed on jurisdictional grounds.

The appellant, representing minority shareholders of Asbestos Corp., sought an order from the Ontario Securities Commission (OSC) under s. 127 of the Securities Act to remove the trading exemptions of the Quebec Government and its Crown corporation after they acquired control of Asbestos Corp. without making a follow-up offer to minority shareholders.

The OSC declined to exercise its public interest jurisdiction, finding insufficient transactional connection to Ontario and no intention to avoid Ontario law.

The Supreme Court of Canada upheld the OSC's decision, ruling that the standard of review is reasonableness and that the OSC properly exercised its preventive, non-remedial discretion based on relevant factors.

In an addendum to a majority judgment, the Divisional Court clarified that the applicants were entitled to interest on damages payable out of the guarantee fund under the Ontario New Home Warranties Plan Act.

The court held that pursuant to the regulations, interest is payable at the Condominium Act rate and may increase the total payment beyond the standard $20,000 maximum limit.

Interest was ordered payable from the date the Warranty Program initially denied the claims.