John Anthony Fabello

The moving parties in a proposed securities misrepresentation class proceeding sought court approval of a third‑party litigation funding agreement prior to certification.

The proposed agreement provided that the funder would pay certain disbursements and indemnify the plaintiffs against adverse costs in exchange for a capped commission from any settlement or judgment.

The court considered the developing law on litigation funding, including concerns about champerty and maintenance, and confirmed that such agreements are not categorically unlawful but require judicial approval.

Finding that the agreement preserved counsel’s independence, protected defendants through security for costs, and promoted access to justice, the court approved the funding arrangement.

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

Three competing groups of plaintiffs and their respective counsel brought carriage motions seeking to represent a class of investors who suffered losses following a massive decline in the value of Sino-Forest Corporation's securities.

The court evaluated the competing actions based on factors including the definition of class membership, class period, theory of the case, causes of action, joinder of defendants, and prospects of certification.

The court stayed the Smith and Northwest actions and granted carriage to the Labourers action, finding its approach to the class definition, causes of action, and joinder of defendants to be the most cohesive and in the best interests of the class.

The appellant appealed a trial decision ordering specific performance of an oral agreement to sell 100,000 shares of a private company to the respondent.

The appellant argued that no binding agreement was reached, that third-party approval was a condition precedent, and that specific performance was an inappropriate remedy.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that an objective reasonable bystander would find the parties intended to contract based on securities industry custom.

The Court also upheld the specific performance order, noting the shares were unique and damages would be inadequate.

The appellants appealed an order dismissing their motion to set aside default judgments for $3.2 million obtained by the respondent.

The default judgments arose from a claim for indebtedness related to purchases in brokerage accounts and allegations of an unlawful stock manipulation scheme.

The appellants also brought a motion to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding that the motion judge properly applied the three-part test for setting aside a default judgment and that the appellants failed to adequately explain their delay or raise a triable defence.

The motion to introduce fresh evidence was also dismissed as it did not meet the Palmer test.

The appellant landowners brought a class action claiming compensation from the respondent pipeline companies for restrictions on the use of their lands imposed by government regulation under the National Energy Board Act.

The motion judge dismissed the action on summary judgment.

On appeal, the Court of Appeal upheld the dismissal, finding that s. 75 of the Act does not create a civil cause of action for compensation, but rather provides a complete code for negotiation and arbitration.

The Court also held that the compensation provisions in the easement agreements were limited to physical damages and did not cover economic losses resulting from regulatory land use restrictions.

The respondents brought a motion to dismiss the proceeding against them on the basis that it was commenced outside the six-year limitation period under section 129.1 of the Securities Act.

Staff alleged a course of conduct involving unregistered trading and illegal distributions that culminated in sales to broker dealers prior to the limitation date, but argued that subsequent receipt of proceeds and certain private share transfers brought the conduct within the limitation period.

The Commission held that the subsequent events were not integral to the alleged wrongdoing and that the Statement of Allegations contained no separate allegations of wrongdoing for events after the limitation date.

The motion was granted and the proceeding dismissed.