Jonathan Ptak

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

The plaintiffs sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act for a proposed securities class action.

The plaintiffs alleged that the defendants misrepresented the company's ability to maintain its dividend, causing shareholders and debenture-holders to sustain losses when the dividend was cut.

The court dismissed the leave motion, finding no reasonable possibility that the secondary market misrepresentation claims would succeed at trial, as the defendants' statements were based on a genuine belief in their growth strategy at the time.

The court also dismissed the certification motion, holding that a class proceeding was not the preferable procedure for the remaining common law negligent misrepresentation claims, which require individualized proof of reliance.

In a proposed class action concerning allegedly defective metal-on-metal hip implants, the defendants brought a motion for the pre-certification production of the representative plaintiff's medical records.

The court formulated a clear rule for Ontario that pre-certification production of medical records will only be ordered if the defendant can show the documentation is relevant to one or more of the certification requirements under section 5(1) of the Class Proceedings Act.

The court dismissed the defendants' broad request for all hip-related medical records as irrelevant to the certification issues, but granted a narrow request for records identifying the specific products implanted, as this was relevant to the plaintiff's suitability as a representative plaintiff.

Two related class actions arising from a tuberculosis exposure incident at a hospital sought court approval of a negotiated settlement and class counsel fees under the Class Proceedings Act, 1992.

The litigation followed exposure notices issued to thousands of individuals after two patients were diagnosed with tuberculosis, leading to claims of negligent failure to diagnose and prevent transmission.

After extensive discovery, expert evidence, and partial summary judgment dismissing claims of uninfected class members, the remaining infected class claims were scheduled for a common issues trial.

The parties reached a $1.7 million settlement establishing a compensation scheme based on varying likelihoods of causation.

The court held the settlement fell within a reasonable range and was in the best interests of the class, and it also approved a 30% contingency fee and honorariums for the representative plaintiffs.

Following certification of a class proceeding alleging unpaid overtime by investment advisors, the court determined the appropriate costs award arising from the certification motion.

The plaintiff sought $575,000 in partial indemnity costs while the defendant argued the award should not exceed $315,000.

The court outlined a structured methodology for certification-motion costs awards emphasizing transparency, historical averages, proportionality, and the Rule 57.01(1) factors.

After reducing the claim for excess fees and disbursements and considering historical cost award data and comparable cases, the court fixed costs at $290,000 all-inclusive payable by the defendant to the plaintiff.

The plaintiff, a former investment advisor, sought to certify a class action against his former employer for unpaid overtime under the Employment Standards Act.

The employer argued that investment advisors fall within the managerial or greater benefit exemptions.

The court found that the plaintiff met all five prerequisites for certification under section 5(1) of the Class Proceedings Act, 1992, including that the applicability of the exemptions could be determined as common issues.

The motion for certification was granted.

The plaintiff, a former investment advisor, sought to certify a class action against the defendant for unpaid overtime under the Employment Standards Act.

The defendant argued that investment advisors were exempt from overtime provisions due to their managerial character or because their compensation provided a greater benefit.

The court found that the plaintiff met all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992, including that the applicability of the exemptions could be determined as common issues.

The motion for certification was granted.

In a certified class proceeding concerning the partial wind-up of a supplemental retirement plan, the defendant insurer brought a refusals motion seeking production of income information, tax assessments, and projected retirement income from the representative plaintiff and certain subclass members.

The defendant argued the information was necessary for its actuarial expert to quantify potential damages.

The court held that the requested information related to individual damage quantification rather than the certified common issues, which were limited to liability and the methodology for calculating damages.

Because the trial judge had not yet determined the methodology for assessing damages or whether aggregate damages could be assessed, ordering production was premature.

The court also held that obtaining information from absent class members would require leave under s. 15 of the Class Proceedings Act.

The motion was dismissed.

The Ontario Plaintiffs brought a motion for approval of a $117 million settlement and release of claims against Ernst & Young LLP within the CCAA restructuring of Sino-Forest Corporation.

Several institutional investors objected, arguing that the settlement improperly extinguished their opt-out rights under the Class Proceedings Act and that the third-party release was not justified under the CCAA.

The court approved the settlement and release, finding them fair, reasonable, and rationally related to the restructuring plan.

The court held that claims compromised within a CCAA proceeding do not afford opt-out rights, and the settlement provided a substantial benefit to stakeholders.

Employees sought certification of a class action alleging that a bank misclassified analysts, investment advisors, and associate investment advisors as ineligible for overtime pay contrary to the Canada Labour Code and the Employment Standards Act, 2000.

The proposed class relied on job titles and levels to establish commonality, arguing that eligibility for overtime could be determined collectively or through statistical sampling.

The court held that determining whether an employee exercised managerial or supervisory functions required a fact‑specific assessment of the actual duties performed by each employee.

Evidence showed wide variation in responsibilities even among employees sharing identical job titles, defeating the proposed common issues and rendering statistical sampling inappropriate for determining liability.

As the central issues of overtime eligibility and breach required individualized inquiries, a class proceeding was not a preferable procedure and the certification motion was dismissed.

In a proposed overtime misclassification class action against a financial institution and its affiliate, the plaintiffs brought a motion to compel answers to refusals and undertakings arising from cross‑examinations on affidavits filed for an upcoming certification motion.

The court balanced the need for a full evidentiary record against the proximity of the certification hearing and the burden of additional production.

Requests for a third‑party inspection of the defendants’ human resources system and certain historical records were refused as disproportionate or unnecessary at the certification stage.

However, several questions concerning the duties of investment advisors, associate investment advisors, and the rationale for overtime eligibility policies were ordered answered because they related to class definition and commonality issues.

Other questions relating to merits issues, irrelevant job descriptions, or hypothetical inquiries were not compelled.