Kristine Spence

The court approved a $500 million settlement in a national class action concerning a price-fixing conspiracy in the packaged bread market, resolving claims against Loblaw Companies Limited and related entities.

The settlement includes a substantial damages payment, a distribution protocol for class members, and a cooperation agreement by Loblaw to assist in ongoing litigation against non-settling defendants.

The court also approved class counsel fees and the payout to a third-party funder, finding the settlement fair, reasonable, and in the best interests of the class.

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

In a supplementary decision on a motion for leave to commence a secondary market securities class action, the court considered whether certain disclosures constituted public corrections of alleged misrepresentations made by the defendants in February and March 2012 regarding a mining project's capital expenditure budget and schedule.

The court found a reasonable possibility that the plaintiffs could prove the July 2012 disclosure was a partial public correction, but rejected subsequent disclosures in November 2012 and April 2013 as public corrections.

Leave was granted to proceed with the misrepresentation claims against the corporate defendant and two individual certifying officers.

The plaintiffs sought leave under the Securities Act to commence a class action against Barrick Gold Corporation and certain officers/directors for alleged misrepresentations in public disclosures concerning the Pascua-Lama mining project.

The court dismissed most of the alleged misrepresentations due to a lack of precision in pleading and insufficient credible evidence, particularly regarding accounting and contingent liability claims, and October 2011, May 2012, November 2012, and March 2013 capex/scheduling claims.

However, the court found a reasonable possibility of success for certain capex budget and scheduling misrepresentations made in February and March 2012, but required further submissions on the issue of public correction for these.

Claims against two individual defendants were dismissed due to their tenure or lack of evidence.

The plaintiffs brought a motion to certify a class action against major producers and retailers of packaged bread, as well as their parent companies, alleging a 16-year price-fixing conspiracy.

The court certified the action against the producer and retailer defendants on behalf of direct and indirect purchasers of packaged bread.

However, the court refused to certify the claims against the parent companies, finding no material facts pleaded to support their involvement.

The court also refused to certify claims on behalf of 'umbrella purchasers' (those who bought fresh bread or packaged bread from non-defendants), finding no plausible methodology to prove that the price-fixing of packaged bread caused an actionable increase in the prices of those non-competing or diverse products.

The plaintiff pension fund sought leave under s. 138.8 of the Securities Act to commence a $3 billion secondary market securities class action against the defendant mining company.

The plaintiff alleged misrepresentations in three categories: capital expenditure and scheduling, environmental compliance, and accounting and financial reporting.

The court dismissed the motion for leave regarding the capital expenditure and accounting allegations, finding that the plaintiff failed to satisfy the public correction requirement.

However, the court granted leave to proceed with one core environmental allegation, finding a reasonable possibility that the plaintiff could establish at trial that the defendant's July 26, 2012 representation about the completion of a water management system was an untrue statement of material fact.

The defendants in a class action sought a pause in proceedings, including the adjournment of a certification motion, pending a Supreme Court of Canada judgment in *Toshiba Corporation v Godfrey*.

The SCC decision was expected to clarify key issues relevant to class certification in price-fixing cases, specifically regarding "umbrella purchasers" and the economic methodology for proving common impact for indirect purchasers.

The court granted the motion, finding that a temporary pause would prevent the need for redoing expert reports and ensure the certification motion was based on the most current state of the law, thereby promoting the expeditious and efficient conduct of the litigation.

The plaintiffs in a proposed class action alleging a price-fixing conspiracy regarding packaged bread sought court approval of a third-party litigation funding agreement with Bentham.

The defendants largely did not object, except regarding a clause allowing Bentham to satisfy any security for costs order via an undertaking rather than paying into court.

The court found the funding agreement necessary for access to justice, fair and reasonable to the class, and approved the agreement, including the provision allowing an undertaking for security for costs.

The respondent purchased the appellant's business in exchange for securities, with the appellant becoming a minority shareholder.

The acquisition agreement contained a representation and warranty regarding tax pools.

Years later, the Canada Revenue Agency disallowed the respondent's use of the tax pools and assessed approximately $11.8 million in additional taxes, interest, and penalties.

The respondent invoked an indemnity from the appellant, who argued the respondent had breached the tax pools representation and warranty.

The motion judge granted summary judgment for the respondent, interpreting the representation and warranty as directed solely to the accurate identification of tax pools and their values at closing, not as a guarantee of future tax utilization.

The appeal was dismissed.

The plaintiff brought a motion for summary judgment seeking indemnification from the defendants for a percentage of taxes, interest, and penalties assessed by the Canada Revenue Agency (CRA).

The parties had previously entered into a Share Put Agreement containing an indemnity clause.

The defendants argued they were protected by a prior representation and warranty regarding the future use of tax pools, and sought a set-off.

The court found that the plaintiff did not guarantee the future use of the tax pools against CRA reassessment, and that any such prior representations were superseded by an entire agreement clause.

The court granted summary judgment for the plaintiff, enforcing the indemnity, and declined to stay execution of the judgment pending the CRA appeal.

This omnibus motion concerned the certification of a class action for settlement purposes, approval of the settlement agreement, notice of certification and opt-out rights, class counsel fees, and honorariums for representative plaintiffs.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting the absence of opt-outs or objections.

The requested class counsel fees and plaintiff honorariums were also approved.