Margaret L. Waddell

The plaintiff sought approval of a $17.5 million settlement with the remaining defendants in a class action regarding a charitable tax scheme.

The court approved the settlement as fair and reasonable, noting the significant risks of further litigation, including enforcement issues in Bermuda.

The court also approved class counsel's 33% contingency fee of $5,829,427.20 plus HST, and a $50,000 honorarium for the representative plaintiff, who made extraordinary efforts and financial sacrifices.

A costs request by third parties was dismissed.

The Holmes defendants sought leave to appeal an order dismissing their fourth motion to set aside a Mareva injunction and ancillary orders.

The motion judge had dismissed the Mareva order challenge on grounds of waiver and res judicata.

The applicant argued for leave based on conflicting decisions and doubt regarding the order's correctness.

The court denied leave, finding no conflicting decision on principle and no serious debate about the order's correctness, emphasizing the unique circumstances and the history of repeated, unsuccessful motions.

The appellant sought to certify a global class action against an Ontario accounting firm for auditor's negligence regarding a clean audit report used in a US private placement.

The motion judge denied certification, finding no real and substantial connection to Ontario for the foreign investors and concluding that joinder was preferable to a class proceeding.

The Divisional Court upheld this decision.

The Court of Appeal allowed the appeal, holding that the motion judge erred by mischaracterizing the claim as being about the foreign financing rather than the Ontario-based audit, and by failing to properly conduct the comparative access to justice analysis required for the preferable procedure criterion.

The action was certified as a class proceeding.

The applicant sought leave to appeal an arbitral award finding it breached contractual and fiduciary duties by failing to redeem the respondent's hedge fund investment.

The arbitrator awarded $1.3 million in damages, rejecting the applicant's argument that damages should be assessed based on an alternative, less onerous method of performance.

The Superior Court denied leave to appeal, finding that the arbitrator correctly interpreted the contract as mandating only one method of performance and that the applicant's challenges raised issues of mixed fact and law, not extricable questions of law.

The plaintiff appealed the dismissal of its motion to certify a global class action against an Ontario accounting firm for negligence and negligent misrepresentation in an audit report.

The Divisional Court (majority) upheld the motion judge's decision, finding no palpable and overriding error in the conclusion that joinder was the preferable procedure and that Ontario lacked a real and substantial connection to the claims of the foreign investors.

The appeal and a motion for leave to appeal costs were dismissed.

A dissenting judge would have allowed the appeal and certified the class action.

In this certified class proceeding, the court decided the costs consequences of a prior motion to finalize a discovery plan before the common issues trial.

The defendants sought partial indemnity costs as the substantially successful party, while the plaintiffs asked for costs in the cause or no costs.

The court held that, even assuming the defendants were successful on the underlying motion, fairness favoured costs in the cause rather than an immediate costs award.

Costs in the cause were fixed at $10,000 all inclusive.

Following dismissal of a certification motion in a proposed securities-related class proceeding, the court addressed a dispute regarding a disbursement claimed by the successful defendant for expert opinion evidence on American securities law.

The plaintiff argued the expert evidence was premature and unnecessary at the certification stage and should not be recoverable as a cost.

The court held that obtaining expert advice regarding potential application of American law was reasonably within the contemplation of the parties given the large number of American investors in the proposed class.

The court concluded that the expert opinion’s utility was tied to the certification motion and had no meaningful future value following refusal of certification.

The disbursement was therefore recoverable immediately along with agreed partial indemnity costs.

In a class proceeding, a subgroup of third party distributor defendants sought legal fees of approximately $286,738 on a full indemnity basis payable forthwith by the Class Proceedings Fund following negotiations and a court order amending certified common issues and staying a third party claim.

The court acknowledged that the subgroup’s counsel contributed to the proceedings but noted that multiple parties’ counsel had similarly contributed.

Given the complex, multi‑party interactions surrounding the negotiations and motion process, the court held that determining entitlement and quantum of costs at this stage would be impractical and counter‑productive.

The court therefore declined to award immediate costs and directed that costs be addressed at the conclusion of the third party action.

The request for immediate payment from the Class Proceedings Fund was rejected.

Following the dismissal of an application for leave to appeal an order staying third party claims in a class action until completion of the common issues trial, the court addressed the issue of costs between the plaintiff and the defendant applicants.

The plaintiff sought partial indemnity costs exceeding $34,000 plus disbursements, while the defendants argued for a significantly reduced amount.

The court rejected the defendants’ criticism of the plaintiff’s preparation time and counsel allocation, emphasizing the importance of the application to the plaintiff and the plaintiff’s leadership role in responding.

Considering the relevant factors, the court fixed costs at a reduced but substantial amount within the defendants’ reasonable expectations.

A proposed class action sought certification against an accounting firm for alleged negligent misrepresentation and negligence arising from a clean audit opinion included in a private placement memorandum for a hog‑farming company.

Accredited investors alleged the audit enabled a financing that later collapsed after disclosures about inadequate financial controls in a cash‑based business.

The court held the pleadings disclosed tenable causes of action and some proposed common issues satisfied the certification threshold.

However, the proposed global class lacked a real and substantial connection to Ontario and a class proceeding was not the preferable procedure, as the investors were identifiable, sophisticated, and capable of pursuing joined claims individually.

Certification was therefore refused.

In a certified class proceeding, the defendants sought leave to appeal a case management order that refined the common issues and stayed their third party claims against numerous distributors pending the common issues trial.

The defendants argued the stay conflicted with principles governing third party claims and with provisions of the Rules of Civil Procedure, the Courts of Justice Act, and the Class Proceedings Act.

The court held that the broad discretionary powers under ss. 12 and 13 of the Class Proceedings Act permitted such case management orders to ensure the fair and expeditious determination of class proceedings.

The court found no reason to doubt the correctness of the stay order and rejected arguments that it conflicted with other statutory provisions or prior case law.

Leave to appeal was denied.

Costs decision following the abandonment of a Rule 45 motion in a class proceeding seeking an order requiring the defendant to pay an alleged fund into court.

The court considered the presumptive rule under Rule 37.09(3) of the Rules of Civil Procedure that a responding party is entitled to costs when a motion is abandoned.

While the plaintiff had a reasonable basis initially to believe the defendant possessed the alleged fund, the court found the motion would have failed because the existence of a fund could not be proven.

The court declined to award substantial indemnity costs due to the absence of reprehensible conduct but granted partial indemnity costs.

The defendant was awarded $30,000 for the abandoned Rule 45 motion and $8,750 for a related refusals motion.

In a certified class proceeding concerning an alleged defective charitable gift program, the plaintiff moved to amend the certified common issues and to stay the defendants’ third‑party claims against distributors until after the common issues trial.

Competing drafts of revised common issues and orders were submitted by the plaintiff, defendants, and another defendant concerned about exposure to an unpleaded claim.

The court preferred the plaintiff’s proposed revisions and order because they more directly preserved the objective of a focused common issues trial that would not bind or involve the distributors.

However, the proposed amendments required clarification to address concerns that they might create liability for negligent implementation of an otherwise valid program, which had not been pleaded or certified.

The court directed that the revisions be modified to limit the issues or, alternatively, that the plaintiff bring a motion to amend the statement of claim and certify the additional common issue.

In a class proceeding settlement approval context, the court considered a motion by class counsel for approval of contingency legal fees equal to one-third of the settlement fund.

The court had initially approved a 25% fee but requested further submissions regarding the higher amount.

Upon reviewing supplementary submissions, the court concluded that contingency fee agreements fully understood and accepted by representative plaintiffs should be treated as presumptively valid.

The court reasoned that focusing on docketed time or retrospective assessments of litigation risk provides little principled guidance and undermines predictability in class action litigation.

Finding that the representative plaintiff understood and supported the fee, that the percentage was consistent with personal injury contingency norms, and that the amount was not unseemly, the court approved the full one‑third contingency fee.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.

The proposed appellant sought leave to appeal an order allowing the plaintiff, an unregistered limited partnership, to continue an action commenced before it was properly registered.

The proposed appellant argued that the word 'maintain' in section 28 of the Limited Partnerships Act means 'commence', requiring the plaintiff to start a new action.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting case law and no good reason to doubt the correctness of the motions judge's determination that 'maintain' allows for the continuation of an action already commenced.

Following a successful application permitting a limited partnership to continue a proposed class proceeding despite a registration error under the Limited Partnerships Act, the court addressed costs.

The moving party sought partial indemnity costs, or alternatively substantial indemnity costs after making an offer to settle.

The responding party argued that no costs should be awarded because the motion was required to remedy the moving party’s own mistake.

The court held that although the error required the application, the responding party chose to contest the legal issue regarding whether the existing action could continue.

Partial indemnity costs of $22,500 were awarded to the moving party.

The proposed representative plaintiff in a class proceeding sought leave under s. 28(2) of the Limited Partnerships Act to maintain an action commenced while it was inadvertently non‑compliant with Ontario registration requirements following a partnership name change.

The defendant argued that the non‑compliance rendered the original action a nullity and that the plaintiff must commence a new proceeding.

The court rejected that interpretation and held that the statutory language permitting a party to “maintain” a proceeding allows continuation of an existing action once leave is granted.

Where the failure to register was inadvertent, the public was not misled, and compliance had been corrected, the statutory conditions for leave were satisfied.

The motion was granted and the existing proceeding allowed to continue.

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.

Following certification of a national class proceeding and dismissal of defendants’ summary judgment motions, the court determined costs arising from the certification and related motions.

The court applied Rule 57 of the Rules of Civil Procedure and principles governing costs in class proceedings, including fairness, reasonable expectations of the parties, and the access to justice objectives of the Class Proceedings Act, 1992.

The litigation involved extensive evidence, numerous defendants, and complex factual and legal issues affecting approximately 10,000 class members with alleged losses approaching $150 million.

The court rejected requests for substantial indemnity costs and declined to refer costs to formal assessment, instead fixing costs directly.

Significant partial indemnity costs and disbursements were awarded to the plaintiff, apportioned among the defendant groups.