Albert Pelletier

The defendants brought a motion under section 5(6) of the Class Proceedings Act, 1992 to stay a proposed global securities class action in Ontario in favour of a similar proposed class action in British Columbia.

The Ontario action alleged statutory secondary market misrepresentation and common law negligent misrepresentation regarding the defendants' artificial intelligence products.

The court considered the objectives and factors under section 5(7) of the Act, noting that the Ontario action was more advanced, had a more streamlined pleading, and that the corporate defendant was a well-resourced telecommunications company capable of litigating in multiple jurisdictions.

The court concluded that the objectives of judicial economy and ensuring justice for all parties favoured allowing the Ontario action to proceed.

The motion for a stay was dismissed.

The court considered costs arising from the adjournment of a motion to remove Osler, Hoskin & Harcourt LLP as counsel of record for the Defendants.

The adjournment was necessitated by privilege issues raised in the Plaintiff’s reply affidavit, which referenced potentially privileged communications.

The Defendants sought full or substantial indemnity costs, arguing the adjournment was predictable and should not have required a full day’s hearing.

The court found that while the Plaintiff’s position had little merit, it was not taken in bad faith or with egregious conduct.

Costs were awarded to the Defendants on a partial indemnity scale in the amount of $66,658.81.

The Plaintiff brought a motion to remove Osler, Hoskin & Harcourt LLP as counsel for the Defendants in a proposed investors' class action, citing conflicts of interest and allegations of professional misconduct stemming from Osler's extensive prior roles with the now-insolvent Wayland Group Corp. and its former directors.

The motion was adjourned because the Plaintiff's supplementary affidavit introduced serious new allegations and referenced potentially privileged documents received inadvertently.

The court ordered the Plaintiff to identify and describe the privileged documents in a new affidavit, allowing the Defendants to file supplementary materials and conduct cross-examinations.

The court emphasized the necessity of addressing privilege issues properly, despite the resulting delay and expense.

The Plaintiffs sought an order confirming personal service or permitting substituted service of their Rule 30.10 Motion Record for Production of Information on Patrick Sheridan, a non-party.

The evidence suggested Mr. Sheridan, a former executive of the corporate Defendant, was evading service.

The Defendants took no position on the relief sought.

The court validated the service effected on Mr. Sheridan at his place of business under Rule 16.02(1)(e) and Rule 16.08, finding that the material had come to his notice.

The court ordered Mr. Sheridan to pay $2,000 in costs to the Plaintiffs due to his evasion of service.

The plaintiff sought approval of a $4,000,000 settlement in a certified shareholder class action against the defendant.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the litigation risks and arm's length negotiations.

The court also approved a $7,500 honorarium for the representative plaintiff and class counsel fees of $1,200,000 (30% of the settlement) plus taxes and disbursements, finding the fee appropriately reflected the risk assumed by counsel.

The plaintiff brought a motion for court approval of the time frame and content for the First Notice to class members, and for an order appointing class counsel to manage the escrow account, following a proposed settlement in a certified class action.

The court approved the proposed Plan of Notice for disseminating the First Notice and its content, finding it appropriate for informing class members about the settlement, their rights to object, and the upcoming settlement approval hearing.

The defendants brought a motion for leave to appeal the order of Morgan J. dated August 15, 2022.

The Divisional Court granted the motion for leave to appeal.

On agreement of the parties, costs of the motion were awarded to the moving parties in the amount of $7,000 inclusive.

This decision concerns a proposed class action for secondary market liability under the Ontario Securities Act.

The parties sought and obtained consent certification of the action, approval of the notice plan, amendment of the plaintiff's pleading to narrow the claim to statutory issues, and substitution of a new representative plaintiff.

The court found that the criteria for certification under the Class Proceedings Act, 1992, were met, including commonality of issues and the appropriateness of the new representative plaintiff.

The Plaintiffs moved to strike the Defendant GuestLogix Inc.'s defence or compel a further and better Affidavit of Documents, arguing deficiencies including the deponent's lack of direct knowledge.

GuestLogix cross-moved for a further affidavit from the Plaintiffs and to dispense with the requirement for a signed affidavit.

The court dismissed the Plaintiffs' motion, finding GuestLogix's affidavit, sworn by an insurer's representative, to be appropriate given the company's prior CCAA sale and lack of original personnel.

The court also found GuestLogix had complied with its production obligations.

The Defendant's cross-motion was satisfied as the Plaintiffs had delivered the requested documents.

Costs were awarded to the Defendant.

Following the dismissal of their motion for leave to proceed under the Securities Act and for class certification, the plaintiffs brought a consent motion to discontinue the action without costs.

The court granted the motion, finding that discontinuance was appropriate and would not prejudice putative class members, as notice of the class proceeding had never been circulated.

The court also approved the proposed Notice of Discontinuance and Notice Plan.

The insurer for an insolvent corporate defendant and a missing individual defendant brought a motion on short notice to intervene and appoint a litigation guardian.

The plaintiffs, who had been preparing to argue their motion for leave to proceed with a secondary market cause of action under the Securities Act, sought an adjournment due to the late service of the insurer's motion record.

The court adjourned the insurer's motion to allow the plaintiffs to respond, and consequently adjourned the plaintiffs' leave motion, as the outcome of the insurer's motion could significantly alter the defense.

The defendants (Underwriters) brought a motion to dismiss the class proceeding for delay under section 29.1 of the Class Proceedings Act.

As a preliminary issue, the court admitted emails between counsel, finding that any common interest privilege was waived by the defendants bringing the delay motion.

On the main issue, the court declined to follow previous strict interpretations of section 29.1.

The court held that its directions at an initial case conference, which required the plaintiffs to take specific steps as soon as practicable, effectively established a timetable under section 29.1(c).

The motion to dismiss was dismissed.

The appellant, David Wong, representing a class of shareholders, appealed the summary dismissal of a secondary market misrepresentation class action against Pretium Resources Inc. and its former CEO.

The claim alleged that Pretium failed to publicly disclose concerns about its Brucejack mining project's resource estimate and feasibility study, which had been conveyed by Strathcona Mineral Services Ltd. The Court of Appeal upheld the motion judge's decision, finding that Strathcona's concerns were not material facts requiring disclosure because they were unsolicited, inexpert, premature, and unreliable opinions, not undisputed facts.

The court also found no error in the motion judge's alternative finding that the respondents had conducted a reasonable investigation.

The appeal was dismissed.

The proposed representative plaintiffs sought leave under s. 138.8 of the Securities Act to commence a secondary market misrepresentation claim against Maxar Technologies Inc. and its directors/officers, alleging failures to properly impair assets and recognize revenue under IFRS.

The court excluded the plaintiffs' expert evidence on IFRS due to lack of qualifications and impartiality, and struck portions of their reply evidence as impermissible case-splitting.

Relying on the defendants' admitted expert evidence, the court found no credible evidence that Maxar's financial statements contained material misrepresentations.

The motion for leave was dismissed as there was no reasonable possibility of success at trial, and the related certification motion was consequently dismissed.

The plaintiff in a putative class action for secondary market misrepresentation brought a motion for the production of documents referenced in the defendants' affidavits prior to serving his reply record.

Alternatively, the plaintiff sought to strike the portions of the affidavits referencing those documents.

The court dismissed the motion, holding that the plaintiff has no right to documentary discovery at the leave stage under section 138.8 of the Securities Act, and that the proper mechanism for production is through cross-examination after the reply is served.

The court also declined to strike the affidavits, noting that hearsay is permitted on motions.

The moving party sought leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 to the responding party.

The plaintiffs brought a motion for approval of a $266,000 settlement in a securities class action, along with approval of class counsel fees and a representative plaintiff honorarium.

The court approved the settlement, noting that the net funds would be distributed cy-près to the Class Action Clinic at the University of Windsor because administration costs would exceed available funds.

The court also approved a $10,000 honorarium for the representative plaintiff and $146,000 in fees and disbursements for class counsel.

The plaintiffs brought a consent motion for leave to proceed under the Securities Act and for certification of a class action for settlement purposes.

The action alleged secondary market misrepresentations by the defendants regarding a pharmaceutical product.

The court found the criteria for leave to proceed and certification were met, approved the class definition and common issues for settlement purposes, and approved the proposed notices to class members.

The plaintiff sought leave to proceed with a putative shareholders' class action for secondary market liability under s. 138.3 of the Securities Act.

The claim alleged that the defendant made material misrepresentations regarding a cannabis facility build-out project and joint venture, which were later publicly corrected, causing a significant drop in share price.

The court found the action was brought in good faith and that there was a reasonable possibility of success at trial, rejecting the defendant's expert economic evidence that the market had already absorbed the news.

Leave to proceed was granted.

The plaintiffs brought a motion for approval of a class action settlement regarding alleged securities misrepresentations by Colt Resources, Inc. The court approved the $950,000 settlement, finding it fair and reasonable given the litigation risks and the statutory liability limits under the Securities Act.

The court also approved the Plan of Allocation, the notice plan, a $5,000 honorarium for each representative plaintiff due to their exceptional efforts in initiating the claim, and class counsel fees of $300,000 plus disbursements.