Megan B. McPhee

The plaintiffs sought certification of a proposed $2.5 billion class proceeding against an insurer arising from alleged misrepresentations in the sale and administration of universal life insurance policies originally issued by another insurer.

The defendant opposed certification and brought a cross‑motion for summary judgment arguing the representative plaintiffs’ claims were statute‑barred.

The court held that the alleged misrepresentation, deceit, good faith, and rescission claims lacked commonality and largely mirrored deficiencies identified in prior appellate authority concerning insurance misrepresentation class actions.

The court further found most negligent misrepresentation claims were statute‑barred under applicable provincial limitation statutes, while certain breach of contract claims relating to cost‑of‑insurance and administrative fee adjustments were not clearly time‑barred but required further evidentiary development.

Certification was dismissed except that the motion was adjourned to permit further evidence regarding potential breach of contract claims concerning cost‑of‑insurance and administrative fee calculations.

In a proposed national class action concerning alleged negligent packaging of the contraceptive drug Alysena 28, the plaintiffs brought a motion relating to the identity of class counsel and seeking injunctive relief against a former co-counsel.

The dispute arose following the breakdown of a professional relationship between two lawyers who had participated in advancing the proposed class proceeding, leading to competing communications with putative class members and the existence of a rival certified class action in Alberta.

The court exercised its supervisory jurisdiction over counsel and class proceedings under the Class Proceedings Act, 1992 and the Solicitors Act.

The court dismissed both the motion and cross-motion, disqualified the disputing lawyers from acting for any putative class members, rescinded existing retainer and contingency fee agreements, and ordered the proposed Ontario class action discontinued as a class proceeding subject to possible revival if the Alberta settlement was not approved.

In a proposed national class action concerning hip devices, the plaintiff moved without notice for an extension of time to serve the statement of claim on foreign defendants in the Netherlands and China.

The court held that proceeding without notice was impracticable in the circumstances, where the service difficulty itself arose from the mechanics of Hague Convention service.

Applying the prejudice-based framework governing extensions of time for service, the court found the plaintiff had made reasonable efforts to effect service within six months and that there was no discernable prejudice caused by the delay.

The time for service was extended to December 31, 2015.

The plaintiff in a proposed class action brought a motion for a stay of a case management direction pending a motion for leave to appeal.

The case management judge had ordered that the parties were not required to exchange affidavits of documents prior to a focused summary judgment motion.

The Divisional Court dismissed the motion for a stay, finding that the plaintiff failed to satisfy any of the three branches of the RJR-MacDonald test.

The court held there was no serious issue to be tried regarding the discretionary case management order, no irreparable harm, and the balance of convenience favoured allowing the action to move forward.

In a proposed class action against an insurer, the court addressed procedural directions for the hearing of a certification motion and a defendant’s summary judgment motion.

The plaintiffs sought a further and better affidavit of documents before the summary judgment motion, arguing procedural unfairness.

The court held that there was no automatic entitlement to an affidavit of documents at this stage and emphasized proportionality principles and the court’s discretion under s. 12 of the Class Proceedings Act, 1992.

The court directed that no affidavits of documents were required and restricted the defendant’s summary judgment motion to limitation period defences against the proposed representative plaintiffs.

The certification motion and the focused summary judgment motion were ordered to be heard together with a revised timetable.

In a certified class proceeding concerning allegedly defective hip implants, the court addressed issues relating to notice to class members and the identification of potential class members.

The court ordered the defendants to make reasonable efforts to locate names and addresses of implant class members contained in product adverse event reports and other related sources where the information was available and the province of residence was not British Columbia or Quebec.

However, the court declined to require an extensive manual internal review of all potential incident reports, finding such a requirement would be disproportionately burdensome and would not materially improve the notice program.

The court also determined the proper title for the certification notice and class counsel’s website, concluding that inclusion of the manufacturer’s name alongside the product identifier was reasonably necessary to inform the intended class.

Following certification of a proposed class action concerning recalled metal-on-metal hip implants, the court determined the appropriate costs award for the certification motion.

The plaintiffs, as the successful parties on certification, sought over $700,000 in partial indemnity costs.

The court found the claim grossly excessive due to over-lawyering, excessive hours, and hourly rates exceeding the applicable guideline ranges.

Applying Rule 57.01(1) of the Rules of Civil Procedure, guidance from appellate jurisprudence, and historical averages for certification motion costs awards, the court significantly reduced the claim.

The court emphasized transparency and predictability in costs awards and fixed costs at $175,000 all-inclusive payable forthwith.

A law firm sought to replace existing carriage counsel in a proposed pharmaceutical class action on the basis of unreasonable delay in bringing a certification motion.

The court held that under s. 12 of the Class Proceedings Act, 1992 it has supervisory jurisdiction to entertain a carriage transfer motion.

The court established a four-part test requiring proof that the delay is clearly unreasonable, that it causes actual prejudice to class members, that the explanation for the delay is inadequate, and that compelling certification within a fixed timeline would be unworkable or not in the class’s best interests.

Applying this test, the moving party failed to demonstrate unreasonable delay or prejudice, and the explanation for the delay was credible.

The motion to replace carriage counsel was therefore dismissed.

The moving parties (class action plaintiffs) brought a motion to quash appeals filed by the respondent objectors.

The court found that the appellants did not have a right of appeal under s. 30(3) of the Class Proceedings Act because they were not parties to the class proceeding.

Furthermore, they did not meet the requirements of s. 30(5) as they had not obtained leave to act as a representative party for an appeal from a judgment on common issues or an aggregate assessment.

The appeals were quashed and the motion to act as representative plaintiff was dismissed.

Invesco sought leave to appeal orders sanctioning a Plan of Compromise and Reorganization under the CCAA and approving a settlement that released Ernst & Young LLP from claims arising from its auditing of Sino-Forest Corporation.

The Court of Appeal denied leave, finding that the proposed appeals failed to meet the stringent test for leave in CCAA proceedings.

The appeal of the Sanction Order was moot, and the issues regarding the third-party release in the Settlement Order were governed by the court's prior decision in ATB Financial.

The Ontario Plaintiffs brought a motion for approval of a $117 million settlement and release of claims against Ernst & Young LLP within the CCAA restructuring of Sino-Forest Corporation.

Several institutional investors objected, arguing that the settlement improperly extinguished their opt-out rights under the Class Proceedings Act and that the third-party release was not justified under the CCAA.

The court approved the settlement and release, finding them fair, reasonable, and rationally related to the restructuring plan.

The court held that claims compromised within a CCAA proceeding do not afford opt-out rights, and the settlement provided a substantial benefit to stakeholders.

The plaintiffs appealed a decision denying certification of a proposed class proceeding against the manufacturers of the drug Seroquel, as well as the associated costs award.

The Divisional Court upheld the motion judge's finding that the pleadings failed to disclose a cause of action under s. 5(1)(a) of the Class Proceedings Act and that the plaintiffs failed to meet the evidentiary threshold for the remaining certification criteria.

The court also found no error in principle in the costs award, noting the motion judge properly exercised her discretion.

The appeal was dismissed with costs fixed at $30,000.

The applicant, Sino-Forest Corporation, sought an order sanctioning a plan of compromise and reorganization under the CCAA.

The plan was supported by the vast majority of creditors, including noteholders, auditors, and underwriters, but opposed by certain funds.

The court found that the statutory requirements were met, the creditors were properly classified, and the plan, including its third-party releases, was fair and reasonable.

The motion was granted and the plan was sanctioned.

Institutional investors sought an adjournment of a motion to sanction a restructuring plan under the Companies’ Creditors Arrangement Act, arguing that provisions in the proposed plan concerning settlements and releases for third party defendants could improperly affect their ability to pursue claims in related securities class actions.

The court reviewed the plan and concluded that approval of any specific settlement, including a proposed auditor settlement, was not before the court on the sanction motion and would require further court orders and satisfaction of multiple conditions precedent.

The court held that any potential impact on investors’ claims could be addressed in future proceedings where the specific settlements and releases would be considered.

As the objections were premature and the debtor faced time and funding constraints, the request for an adjournment was denied.

The defendants sought costs relating to four motions in a proposed class action that were ultimately never argued, including motions to strike portions of the statement of claim, for a pre-certification notice, for a sealing order, and for inspection of documents referred to in the pleadings.

The plaintiffs amended their pleadings multiple times and eventually produced certain documents, resulting in the withdrawal or abandonment of the motions.

The court held that the defendants had been put to unnecessary expense due to the manner in which the plaintiffs prosecuted the action.

Exercising its discretion under Rule 57.01(1) of the Rules of Civil Procedure, the court concluded that the defendants were practically the successful party in respect of the abandoned or unargued motions.

Costs of $14,000 all-inclusive were awarded to the defendants, payable in any event of the certification motion.

The plaintiff sought leave to commence a secondary market misrepresentation action under the Securities Act and to certify a class proceeding against the defendants for misrepresentation, conspiracy, and oppression.

The plaintiff alleged that the defendants fabricated a financial crisis by including a 'going concern' note in the company's financial statements to artificially depress the share price, allowing insiders to acquire shares cheaply.

The court dismissed the motion for leave, finding no reasonable possibility of success at trial, as the financial disclosures were factual, required by GAAP, and made after reasonable investigation.

The court also refused to certify the conspiracy claim due to a lack of factual basis and struck the oppression claim, ruling that the Ontario Superior Court lacked subject-matter jurisdiction over an oppression remedy under the British Columbia Business Corporations Act.

Following dismissal of a proposed pharmaceutical class action certification motion, the successful defendants sought $1.2 million in costs.

The plaintiffs argued that no costs should be awarded due to public interest considerations relating to individuals with mental illness or, alternatively, that costs should be limited to $75,000.

The court held that although individuals with mental illness may constitute a historically disadvantaged group, the evidentiary record did not engage the public interest considerations under s. 31 of the Class Proceedings Act, 1992.

Applying the principles governing certification motion costs and considering the complexity of the proceeding, the plaintiffs’ litigation conduct, and comparable awards, the court fixed fees at $475,000 and allowed most disbursements subject to a reduction in travel expenses.

The plaintiffs brought a motion to certify a class action against the defendants, the manufacturers of the antipsychotic drug Seroquel.

The plaintiffs alleged that Seroquel caused various health risks, including weight gain and diabetes, and that the defendants were negligent in their design, testing, marketing, and failure to warn, particularly regarding off-label uses.

The court dismissed the certification motion, finding that the plaintiffs failed to satisfy any of the criteria under section 5(1) of the Class Proceedings Act.

The statement of claim was found to be fundamentally deficient, failing to disclose a valid cause of action.

Furthermore, the court found no identifiable class, a lack of common issues capable of being assessed in common, that a class action was not the preferable procedure, and that the proposed representative plaintiffs were unsuitable.

The plaintiffs in a proposed class action sought orders to have a motion for approval of a third party financing and indemnity agreement heard without notice to the defendant, in camera, and with the documents sealed.

They argued that disclosure would compromise solicitor-client privilege and litigation strategy.

The court dismissed the motion, holding that the defendant is affected by the funding agreement and entitled to notice and participation.

The court further held that third party funding agreements are not privileged, or if they are, the privilege is waived when applying for court approval.

The open court principle requires the funding motion to be heard publicly, though the court provided specific procedural directions for the future motion.

The applicant, a police officer facing disciplinary proceedings, sought judicial review of a Hearing Officer's interlocutory decision dismissing his motion to stay the charges for abuse of process and lack of jurisdiction.

The Divisional Court dismissed the application as premature, holding that the applicant should proceed through the statutory appeal process after a final decision.

The Court also addressed the jurisdictional argument on its merits, finding that the Hearing Officer reasonably and correctly interpreted the Police Services Act in concluding that an investigation need not be entirely completed before a notice of hearing is issued.