Kirk Michael Marius Baert

The plaintiffs brought a motion for certification of a class proceeding and for leave to proceed with statutory claims for misrepresentation under the Securities Act against Celestica Inc. and its former executives.

The plaintiffs alleged misrepresentations regarding a 2005 restructuring, inventory, revenue, and GAAP compliance.

The court granted leave and certified the class action solely with respect to the alleged misrepresentations about the 2005 restructuring, finding a reasonable possibility of success.

Leave and certification were denied for the inventory, revenue, and GAAP claims due to a lack of evidentiary foundation.

The court also declined to certify the common law negligent misrepresentation claim, finding it did not satisfy the preferable procedure criterion.

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 moved for approval of a $35 million settlement in a class action against the Crown regarding alleged negligence and breach of fiduciary duties at the Huronia Regional Centre, a residential facility for individuals with developmental disabilities.

The settlement included a claims-based compensation scheme, an apology from the Crown, and various non-monetary benefits.

The court found the settlement to be fair, reasonable, and in the best interests of the class, considering the litigation risks and the advanced age of the class members.

The court also approved a $15,000 honorarium for each of the representative plaintiffs.

The appellant, Inco Limited, appealed a costs order awarding it $1,766,000 following its successful defence of a class action at the Court of Appeal.

Inco argued it was entitled to over $5.3 million and that the trial judge erred by reducing its legal fees and applying a 50 per cent discount under s. 31(1) of the Class Proceedings Act.

The Court of Appeal dismissed the appeal, finding no error in principle in the trial judge's determination that the environmental tort class action raised novel points of law and involved matters of public interest.

The court upheld the trial judge's methodical and reasonable costs analysis.

Trustees of a pension fund sought certification of a securities class action and leave to proceed with statutory secondary‑market misrepresentation claims under Part XXIII.1 of the Ontario Securities Act.

The proposed class alleged that a mining company and its officers misrepresented the value and prospects of two West African mines and failed to timely record a goodwill impairment.

The court analyzed the leave test requiring a “reasonable possibility of success at trial” and concluded that the plaintiffs’ theory relied on flawed expert analysis and speculative assumptions regarding drilling results and impairment triggers.

The alleged low‑grade ore misrepresentation was found to be semantically inaccurate, and an alleged schedule misrepresentation had not been pleaded.

Leave to proceed under the Securities Act was therefore refused, and certification was denied, though the individual common law negligence claim could continue.

The moving parties (class action plaintiffs) brought a motion to quash appeals filed by the respondent objectors.

The court found that the appellants did not have a right of appeal under s. 30(3) of the Class Proceedings Act because they were not parties to the class proceeding.

Furthermore, they did not meet the requirements of s. 30(5) as they had not obtained leave to act as a representative party for an appeal from a judgment on common issues or an aggregate assessment.

The appeals were quashed and the motion to act as representative plaintiff was dismissed.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellants were ordered to pay costs to the respondent Diocese in the amount of $20,000, inclusive of disbursements and taxes.

The appellants sought to certify a class action against a private religious school, its former headmasters, and the local Anglican Diocese for historical abuse.

The motion judge refused certification against all respondents, but specifically dismissed the action against the Diocese for failing to disclose a reasonable cause of action.

The appellants appealed to the Court of Appeal.

The Court held it had jurisdiction under s. 6(1)(b) of the Courts of Justice Act to hear the appeal regarding the Diocese, as it was a final order dismissing the action, not merely a refusal to certify.

On the merits, the Court upheld the dismissal, finding the pleadings failed to establish sufficient proximity to ground a duty of care or a fiduciary relationship between the Diocese and the students.

The Court declined to join the appeal regarding the other respondents, transferring it to the Divisional Court.

The appellants appealed the motion judge's refusal to certify a class action against the respondents.

The Court of Appeal declined to exercise its discretion under s. 6(2) of the Courts of Justice Act to hear the appeal regarding the refusal to certify the action against the College, Farnsworth, and the Estate of Haig.

The court directed that the appeal involving those parties be transferred to the Divisional Court.

The appellants, auditors and underwriters of Sino-Forest Corporation, appealed an order declaring that their claims for contribution and indemnity against Sino-Forest were 'equity claims' under the Companies' Creditors Arrangement Act (CCAA).

The claims arose from proposed shareholder class actions alleging misrepresentation.

The Court of Appeal dismissed the appeal, holding that the definition of 'equity claim' in s. 2(1) of the CCAA focuses on the nature of the claim rather than the identity of the claimant.

The court found that the appellants' claims for contribution and indemnity were clearly connected to the shareholders' equity claims and thus fell within the expansive statutory definition.

The representative plaintiff brought a motion seeking approval of a class action settlement and class counsel fees under s. 29 of the Class Proceedings Act, 1992.

The underlying action alleged that a credit card issuer charged cash advance fees and interest that could produce an effective annual interest rate exceeding the criminal interest threshold under s. 347 of the Criminal Code.

After nearly nine years of litigation and mediation, the parties agreed to an $8 million settlement fund, including cy près distribution to the Law Foundation’s Access to Justice Fund and account credits for qualifying cardholders with open accounts.

The court found the settlement fair, reasonable, and in the best interests of the class, approving the settlement and class counsel fees but declining to award an honorarium to the representative plaintiff.

The defendants brought a motion to strike portions of the plaintiffs' proposed class action statement of claim, arguing that the statutory cause of action under Part XXIII.1 of the Securities Act was statute-barred because the plaintiffs did not obtain leave before the expiry of the three-year limitation period.

The court held that the common law special circumstances doctrine applies to the limitation period in the Securities Act, giving the court jurisdiction to make an order nunc pro tunc granting leave.

The court found special circumstances existed because the defendants had known of the claims since 2007 and suffered no prejudice.

The motion to strike the statutory claims was dismissed, but the common law negligent misrepresentation claim was struck with leave to amend for failing to plead detrimental reliance.

Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.

The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.

However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.

Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.

The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.

Following a decision on a special case in favour of the plaintiff, the parties reached a consensus on costs.

The Court of Appeal ordered costs of $15,000 inclusive of taxes and disbursements payable forthwith by Canada to the plaintiff.

In a class proceeding costs dispute following the dismissal of environmental contamination claims, the defendant brought a motion to strike portions of affidavits filed by a third-party fund administrator opposing payment of costs from the Class Proceedings Fund.

The challenged affidavits contained opinion evidence from non‑expert witnesses asserting that the litigation raised issues of public interest.

The court applied the principles governing admissibility of lay opinion evidence from R. v. Graat, distinguishing between admissible opinion grounded in factual observations and inadmissible speculation or legal opinion.

While the court permitted most of the opinion evidence as permissible lay opinion supporting observations about the public interest and access to justice, it struck limited portions that lacked factual foundation or amounted to speculation.

Following certification of a class proceeding concerning alleged systemic abuse at a provincial institution, the court determined the appropriate costs award for the certification motion.

The plaintiff sought full indemnity costs, arguing that the defendant increased litigation expenses by delaying disclosure of its position and by re‑litigating issues previously rejected in similar proceedings.

The court held that while the defendant’s conduct was frustrating, it did not reach the threshold of “reprehensible, scandalous or outrageous” behaviour required for full indemnity costs.

However, because the plaintiff had delivered an unaccepted offer to settle, Rule 49.10 of the Rules of Civil Procedure justified partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The requested amounts were found reasonable and were awarded accordingly.

In a certified class proceeding concerning alleged systemic abuse and mistreatment of residents at a provincial facility for individuals with developmental disabilities, the plaintiffs brought a Rule 21 motion seeking a pre‑trial determination that the defendant owed the class a duty of care and fiduciary duty.

The defendant opposed the motion, arguing that the existence and scope of such duties required a full evidentiary record and should be determined at the common issues trial.

The court held that deciding only part of the duty analysis prior to trial would improperly fragment the inquiry and risk duplicative consideration of evidence.

Exercising case management powers under s. 12 of the Class Proceedings Act, 1992, the court directed that the motion not proceed before the common issues trial.

The plaintiff brought a class action against the Attorney General of Canada alleging Health Canada was negligent in regulating temporomandibular joint implants.

The defendant moved to decertify the action, arguing the pleadings did not establish a private law duty of care.

On a special case stated to the Court of Appeal, the court held that while a regulator's public statements alone do not create proximity, the plaintiff's allegations that Health Canada repeatedly misrepresented the safety of the implants and failed to correct the misrepresentation despite knowing the risks could arguably establish a prima facie duty of care.

The motion was granted, allowing the claim to proceed.

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.

The moving party sought certification of a class action alleging systemic physical, emotional, and sexual abuse of visually impaired students at a provincially operated residential school.

The claim alleged negligence and breach of fiduciary duty arising from the province’s operation and supervision of the institution over several decades.

The court held that the pleadings disclosed viable causes of action in negligence and breach of fiduciary duty, including claims predating 1963.

It found an identifiable class, common issues relating to systemic misconduct, and that a class proceeding was the preferable procedure for resolving the claims.

The proposed representative plaintiff and litigation plan were found adequate, and the action was certified as a class proceeding.