Mark Walli

Following a decision granting leave to proceed with secondary market misrepresentation claims and certifying a class action, the parties disputed the settlement of the order, the certification of the primary market subclass's financial outlook claim, and costs.

The court held that the primary market subclass's claim remained certified, as importing a merits-based leave test into the certification criteria was improper.

The court settled the order in accordance with the plaintiff's draft, declined to clarify findings of fact, and awarded the plaintiff $950,000 in costs based on overall success.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

The moving party brought a motion under Rule 34.10 of the Rules of Civil Procedure to compel the responding parties to produce documents in advance of cross-examinations on affidavits sworn in support of the responding parties' summary judgment motions.

The responding parties argued the motion was prohibited under Rule 48.04(1) because the action had been set down for trial, and that the requests were disproportionate.

The court held that Rule 48.04(1) did not bar the motion and the moving party had not waived the right to documentary discovery.

However, because the responding parties had never served affidavits of documents, the court dismissed the motion without prejudice, directing the responding parties to first serve affidavits of documents so that relevance and proportionality could be properly assessed.

The defendants in a proposed price-fixing class action brought a motion to strike the affidavits of the plaintiffs' economics expert, arguing the proposed methodologies for calculating aggregate damages and pass-through rates were invalid and unreliable.

The court applied the test for admissibility of expert evidence and found that the expert's proposed regression models and economic analyses met the threshold for reliability and were highly probative to the certification motion.

The motion to strike was dismissed, with the issue of the legal relevance of umbrella purchaser claims deferred to the certification hearing.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action, which alleged that the defendant breached an ad hoc fiduciary duty owed to them regarding an option agreement and an equity position in a pharmaceutical company.

The court found that the defendant made no commitment or undertaking to the plaintiffs that would give rise to a fiduciary duty.

Furthermore, the court held that the action was an abuse of process, as it was an attempt to re-litigate issues concerning the option agreement that had already been decided against the plaintiffs in a previous proceeding against the estate's executor.

The defendants' motion for summary judgment was granted and the action was dismissed.

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 defendants brought a motion to stay the plaintiff's action based on a mandatory arbitration clause in the base trade credit insurance policy.

The plaintiff opposed the motion, relying on a Canadian endorsement that permitted an action against the insurer in Canada and stated that endorsements prevail in the event of a conflict.

The court found that the contract, read as a whole, provided alternative methods for dispute resolution and that the endorsement prevailed over the base policy's arbitration clause.

The motion to stay the action was dismissed.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

In a certified franchise class action alleging price maintenance and breaches of franchise law, the representative plaintiffs sought court approval of a proposed settlement under the Class Proceedings Act, 1992.

The settlement provided $275,000 to reimburse class counsel disbursements and required class members to release all claims relating to the purchase, sale, distribution, promotion, or marketing of supplies.

The court held that although the settlement outcome was otherwise reasonable given the weak prospects of success and litigation risks, the release clause was overbroad because it could bar future claims unrelated to the existing alleged misconduct.

The judge found that approving such a release would unfairly deprive class members of potential future claims.

The court therefore refused to approve the settlement.

In a certified class action alleging price maintenance and conspiracy by a franchisor and its designated food supplier, the parties brought reciprocal motions regarding refusals on examinations for discovery.

The court applied the principles of relevance, materiality, and proportionality, emphasizing that the action was certified based on a 'top-down' systemic approach rather than a 'bottom-up' product-by-product analysis.

The court largely upheld the refusals, finding many questions to be irrelevant, disproportionate, or inconsistent with the certified common issues, while ordering a small number of questions to be answered.