Kirk Michael Marius Baert

The Superior Court of Justice approved a $26.5 million settlement in a securities class action against Penn West Petroleum Ltd. and its officers/directors.

The court emphasized the "zone of reasonableness" analysis for settlement approval, requiring class counsel to provide sufficient evidence, particularly regarding available insurance coverage, to justify the settlement amount.

Leave was granted under the Securities Act and the action was certified for settlement purposes under the Class Proceedings Act.

Class counsel's contingency fees of 33% were also approved.

The defendants brought a motion to quash the plaintiff's motion for certification of a common law misrepresentation claim, arguing that the court was functus officio, the motion was res judicata, or it constituted an abuse of process.

The court granted the defendants' motion, finding that the preferability of a stand-alone common law misrepresentation claim had already been determined and rejected in a prior certification decision.

This prior determination, which was not appealed, barred re-litigation of the issue under the doctrines of issue estoppel or abuse of process.

However, the court allowed the plaintiff to bring a motion under s. 7 of the Class Proceedings Act, 1992, to continue the action as an opt-in joinder proceeding for class members with significant claims.

This decision approves a $35.9 million class action settlement and legal fees for a fourth class action concerning abuses in provincial "Schedule 1" facilities.

The settlement mirrors three previous approvals (Huronia, Rideau, Southwestern) and provides a claims-based compensation scheme for individuals with developmental disabilities who resided in 12 named facilities.

The court found the settlement to be fair and reasonable, particularly because the Huronia settlement, which served as the template, was reached just before trial, ensuring counsel had a comprehensive understanding of litigation risks and rewards.

The plaintiffs sought leave to appeal an interlocutory costs order in a securities misrepresentation class action.

The motion judge had ordered the defendant to pay 50% of the costs forthwith and 50% in the cause, while disallowing disbursements that had already been paid by settling defendants.

The Divisional Court dismissed the motion for leave to appeal, finding that the plaintiffs failed to satisfy the tests under Rule 62.02(4)(a) or (b).

The court emphasized the high degree of deference owed to discretionary costs orders, particularly those made by an experienced case management judge in a complex class proceeding.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

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 this certified class action, the defendant moved for summary judgment dismissing claims by private issuers of motor vehicle licences and registrations alleging breach of contract and unjust enrichment arising from compensation fixed by the province.

The plaintiff informally sought summary judgment on issues including commercially reasonable compensation, good faith, and the anti-fettering doctrine.

Applying the post-Hryniak summary judgment framework, the court held that the action raised numerous genuine, novel, and profound issues at the intersection of private and public law that should be determined at trial.

The court emphasized the need for a full evidentiary record, party vindication, and appellate review.

Both the motion and the informal cross-request for summary judgment were dismissed, with costs in the cause.

This was a costs decision arising from an individual issues motion in a class proceeding after judgment on common issues had been granted.

The representative plaintiffs sought recovery of counsel fees and substantial disbursements incurred through the common issues phase, including occupational therapy and psychological assessment reports for class members.

The court held that Rule 49 offers were not to affect costs at this stage, excluded certain unrecoverable disbursements, and treated only part of the medical assessment expenses as attributable to successfully advancing the action to the individual issues phase.

Costs of $214,624.41 all-inclusive were awarded, with the balance of certain disbursements reserved for the individual issues phase.

Two competing groups of plaintiffs, KMG and RGG, brought class actions against Barrick Gold Corporation for securities misrepresentations related to environmental violations at a Chilean mine.

The motion judge granted carriage to RGG, finding their broader claims and superior state of preparation were in the best interests of the class.

KMG appealed the carriage order.

The Divisional Court dismissed the appeal, holding that the motion judge articulated the correct test, did not err in law or principle, and committed no palpable and overriding factual errors in his assessment of the carriage factors.

The appellant, Teranet Inc., appealed a Divisional Court decision certifying a class action brought by the respondent land surveyor for copyright infringement.

The respondent alleged that the appellant's provision of electronic copies of land surveys to the public for a fee infringed the surveyors' copyright.

The Court of Appeal dismissed the appeal, finding that the Divisional Court did not err in allowing the respondent to revise its class definition and common issues on appeal, as the changes were not fundamental and did not prejudice the appellant.

The Court further upheld the certification, concluding that the revised class definition was not merits-based, the common issues would significantly advance the litigation, and the respondent was a suitable representative plaintiff despite not relying on the appellant's services.

In this proposed securities class action arising from the collapse of a public issuer, the plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of claims on behalf of purchasers of notes and shares in the primary and secondary markets.

Subject to one contested issue concerning former noteholders who had assigned their notes during the class period, the motions were unopposed or proceeded on consent.

The court granted leave and certified the action, holding that the substantive dispute over whether assigned noteholder claims vested in transferees under New York law should be postponed until after certification.

The court found it procedurally preferable and fair to defer that merits issue until after a defence was delivered, thereby avoiding interlocutory delay in a large and complex class proceeding.

The moving parties sought leave to appeal an order that stayed their proposed class action (the Labourers Action) and granted carriage to a competing proposed class action (the DALI Action).

The underlying actions alleged securities misrepresentations by Barrick Gold Corporation.

The Divisional Court granted leave to appeal, finding that the motion judge's approach to assessing the complexity of claims and the state of preparation conflicted with established case law and provided good reason to doubt the correctness of the decision.

The appellants, trustees of a pension fund, sought leave under the Securities Act and certification under the Class Proceedings Act for a $4 billion class action against Kinross Gold Corporation for alleged misrepresentations regarding two gold mines.

The motion judge dismissed the motion, finding no reasonable possibility of success for the statutory claims due to flawed expert evidence, and consequently denied certification for the common law claims.

The Court of Appeal upheld the decision, confirming the motion judge's assessment of the leave test and concluding that a class action was not the preferable procedure for the remaining common law negligent misrepresentation claims due to the need for individualized inquiries into reliance.

A carriage motion was brought to determine which of two competing groups of class action firms should conduct a proposed securities class proceeding against a mining company and its executives arising from alleged misrepresentations about a Chilean mining project.

One action advanced a single claim based on environmental misrepresentations, while the competing action advanced multiple claims including environmental, capital expenditure, accounting misrepresentation, conspiracy, and limitation‑related doctrines.

The court held that on a carriage motion the judge should not determine which claim is most likely to succeed but should assess whether claims are viable and free of obvious defects.

The competing action advancing multiple viable claims and demonstrating a substantially higher level of preparation was found to better serve the interests of the class.

Carriage was therefore granted to the more comprehensive and better prepared action.

Following a successful appeal that certified a class proceeding after the appellant re-cast its case, the court determined the costs of the appeal and the motion below.

The appellant was awarded $45,000 for the appeal as the successful party.

However, because the appellant completely re-formulated its case on appeal, prejudicing the respondent at the motion stage, the court set aside the motion judge's $200,000 costs award to the respondent and ordered that neither party receive costs for the motion below.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.

In a motion under the Class Proceedings Act, 1992, class counsel sought court approval of legal fees following settlement of three related institutional abuse class actions involving provincially operated facilities for individuals with developmental disabilities.

The settlements created a total fund of $67.7 million, with additional administration and notice costs bringing the total cash value to approximately $70.7 million.

Class counsel requested $14 million in fees, representing approximately 20.68% of the settlement fund, plus disbursements and taxes.

The court applied the established factors for approving class counsel fees, including litigation risk, complexity, time invested, results achieved, and expectations of the class.

Finding the requested contingency fee within the common range for class actions and reasonable given the risks and work performed, the court approved the fees, disbursements, taxes, and the allocation of fees among the three actions.

The plaintiffs brought a motion for approval of settlements in two class actions against the Crown regarding the operation of the Rideau Regional Centre and the Southwestern Regional Centre, residential facilities for individuals with developmental disabilities.

The plaintiffs alleged negligence and breach of fiduciary duties resulting in harm and abuse.

The court approved the settlements, which included a $32.7 million settlement fund, a claims-based compensation scheme, an apology from the Premier, and other non-monetary benefits, finding them fair, reasonable, and in the best interests of the class members.

The appellants, former students of Grenville Christian College, appealed a decision refusing to certify their class action for institutional abuse.

The motions judge had found that all certification criteria were met except for the preferable procedure, concluding that individual issues would overwhelm common ones.

The Divisional Court allowed the appeal, finding the motions judge made a palpable and overriding error by failing to properly analyze the access to justice barrier and by incorrectly assuming common issues would need to be relitigated.

The Court certified the class action and awarded costs to the appellants.