Robb C. Heintzman

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

This is a costs endorsement on appeal from a partial summary judgment motion.

The appellants (lenders) and respondents (Deloitte) agreed on the quantum of costs for both the motion below and the appeal but disagreed on timing of payment.

The respondents argued costs should remain in the cause based on an alleged agreement that no money change hands on interlocutory motions until final resolution.

The Court of Appeal rejected this argument, finding it inconsistent with the respondents' own prior positions and earlier costs orders in the litigation.

The court determined that the motion judge erred in granting partial summary judgment and that costs should be fixed and payable immediately.

The appellants, holding foreign arbitral awards against the Kyrgyz Republic, sought declarations that the Republic owned shares in Centerra Gold Inc. registered to Kyrgyzaltyn JSC, a state-owned corporation.

The applications judge dismissed the applications, finding no evidence of a transfer of rights, express trust, or resulting trust.

The Court of Appeal upheld the decision, confirming that the governing agreement unambiguously established Kyrgyzaltyn as the beneficial owner of the shares and that the presumption of resulting trust was rebutted by the evidence of intention.

The appellants, a syndicate of lenders, sued the respondent auditors for negligent and reckless misrepresentation after advancing funds to a company based on audited financial statements that failed to disclose a massive accounting fraud.

The motion judge granted partial summary judgment dismissing the lenders' negligence claim, finding that the spectre of indeterminate liability negated the auditors' prima facie duty of care.

The Court of Appeal allowed the appeal, holding that partial summary judgment was inadvisable in the context of the litigation as a whole due to the real risk of duplicative or inconsistent findings at the upcoming trial on the remaining claims.

The defendant moved under Rules 21.01(1)(a) and 51.06 for a declaration that the plaintiffs had irrevocably elected to affirm a settlement agreement and therefore could not pursue rescission in the alternative.

In a complex commercial dispute arising from the termination of margin facilities and liquidation of hedge fund assets during the 2009 financial crisis, the court held that the factual matrix, discovery record, and alleged misrepresentations were too complicated to resolve on a paper record on the eve of trial.

The court was not satisfied that the pleadings or discovery admissions established the necessary elements of election, nor that a forced election between inconsistent remedies should be imposed at that stage.

The motion was dismissed, leave to amend was granted, and costs of $100,000 inclusive were awarded to the plaintiffs.

The appellants, representative plaintiffs in a class action alleging auditor negligence, appealed the dismissal of their motion under Rule 30.10(1) for production of investigation documents from the Institute of Chartered Accountants of Ontario, a non-party.

The Court of Appeal upheld the motion judge's finding that it would not be unfair for the appellants to proceed to trial without the documents.

Although the Court found the motion judge erred in concluding the documents were protected by case-by-case privilege under the Wigmore criteria, the appeal was dismissed because the appellants failed to establish the unfairness requirement of Rule 30.10(1).

In a billion‑dollar negligence class action against auditors arising from allegedly defective audit reports relied upon by lenders, the plaintiffs brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of investigative materials held by the Institute of Chartered Accountants of Ontario relating to disciplinary proceedings against two audit partners.

The court held that production from a non‑party requires proof that the documents are relevant and that it would be unfair to require the moving party to proceed without them.

The plaintiffs failed to demonstrate unfairness because they already possessed the underlying documentary record and extensive discovery evidence, and the investigator’s report was not necessary for the pending partial summary judgment motion or the pleaded issue estoppel.

The court further held that the materials were protected by a case‑by‑case privilege under the Wigmore criteria arising from confidential communications between the professional regulator and its members during disciplinary investigations.

The appellants challenged a motion decision holding that s. 61 of the Chartered Accountants Act, 2010 barred use in civil litigation of materials from professional discipline proceedings conducted under the predecessor Chartered Accountants Act, 1956.

The Court of Appeal held that, while s. 61 is an evidentiary rule with immediate application to ongoing civil proceedings, its text plainly applies only to records of proceedings under the 2010 Act.

The court rejected reliance on statutory purpose, transitional references to the predecessor legislation, and the alleged unusual procedural history to expand the section beyond its wording.

The appeal was allowed, the order below was set aside, and leave to amend the pleading was granted.

The appellant commenced a proposed class action asserting a statutory cause of action under s. 130 of the Securities Act for misrepresentations in a prospectus.

The motion judge found the claim was barred by the limitation period in s. 138 of the Securities Act and was not saved by the suspension of limitation periods in s. 28 of the Class Proceedings Act.

The Court of Appeal upheld the decision, finding that a prior class action appeal did not encompass the s. 130 claim, meaning the suspension of the limitation period ended when the time to appeal the dismissal of that specific claim expired.