Michael C. Spencer

The appellants, representative plaintiffs in a certified class proceeding concerning universal life insurance policies, appealed the dismissal of their motion to amend their statement of claim and add a new common issue regarding an 'Investment Spread Claim'.

The motion judge refused the amendments on the basis that the claim was a new cause of action that was discoverable in 2016 and therefore statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's decision, agreeing that the claim was not captured by existing pleadings, was discoverable based on a 2016 repricing report, and did not engage a rolling limitation period as it involved discrete decisions rather than periodic breaches.

The plaintiffs in this class proceeding moved to amend their statement of claim to add a new cause of action related to an "investment spread" and sought certification of a new common issue.

The defendant opposed, arguing the claim was time-barred and the amendment would fundamentally alter the certified action.

The defendant also moved to strike portions of the plaintiffs' expert report as irrelevant.

The court dismissed the plaintiffs' motion to amend, finding the claim discoverable in 2016 and thus out of time, and that the amendment would cause non-compensable prejudice and delay.

The court granted the defendant's motion to strike the expert report portions related to the investment spread and profitability, deeming them irrelevant to the certified common issues.

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 plaintiffs brought a motion to settle the Notices of Certification and the Litigation Plan in a class action concerning universal life insurance policies.

The court excluded certain sentences from the Notices of Certification, finding them unnecessary and potentially confusing for class members deciding whether to opt out.

The court also heavily edited the plaintiffs' proposed Litigation Plan, removing extraneous, premature, and confrontational information, noting that a post-certification litigation plan should focus on implementation rather than litigation strategy.

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.

This appeal concerns a proposed $2.5 billion class action involving more than 230,000 universal life insurance policies sold by Metropolitan Life Insurance Company between 1985 and 1998.

The plaintiffs alleged misrepresentation in the sale of policies and breach of contractual duties relating to premiums and fees.

The motions judge dismissed the certification motion for misrepresentation claims and initially declined to certify breach of contract claims.

The Court of Appeal allowed the appeal in part, certifying the breach of contract common issues and allowing the plaintiffs to pursue individual misrepresentation claims.

The court found the motions judge erred in principle by failing to conduct individualized and contextual analyses of the limitation period defences and by improperly deciding the merits of the breach of contract claims at the certification stage.

This appeal concerns whether a proposed securities class action asserting a statutory cause of action for misrepresentation under Part XXIII.1 of the Ontario Securities Act was time-barred by the three-year limitation period in section 138.14.

The appellant commenced a class action in May 2009 but did not bring a motion for leave to proceed with the statutory claim within the limitation period.

The motion judge refused to grant leave nunc pro tunc (retroactively), finding that the appellant failed to meet the test established by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green.

The Court of Appeal upheld the motion judge's decision, finding no error in principle in the exercise of discretion to deny nunc pro tunc relief.

Following the dismissal of the plaintiffs' motion for class certification and the defendant's mixed success on a summary judgment motion, the defendant sought costs of $3.6 million on a substantial indemnity basis.

The plaintiffs argued the award should not exceed $775,000.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiffs in pleading misrepresentation.

Considering the defendant's technical loss on the summary judgment motion, which nonetheless provided a strategic victory in defeating certification, the court fixed costs at $1.0 million on a partial indemnity basis as a fair and reasonable amount.

The plaintiffs brought a motion to certify a class action against a life insurance company, alleging breach of contract regarding increases to the cost of insurance and administrative fees for universal life insurance policies.

The court had previously adjourned the motion to allow for further evidence on how the fees were calculated.

After reviewing actuarial evidence, the court found that the insurer had set and adjusted the fees in accordance with the policy terms and industry practice.

Concluding there was no basis in fact for the breach of contract claims, the court dismissed the certification motion in its entirety.

This decision addresses costs following the dismissal of the plaintiff's cross-motion and the granting of the defendants' motions in a proposed securities misrepresentation class action.

The plaintiff, St. Clair Pennyfeather, had sought a *nunc pro tunc* order to save his statutory misrepresentation claim, which was ultimately deemed statute-barred.

The Timminco Defendants sought $124,028.81 in costs, and the Photon Defendants sought $25,330.07, both on a partial indemnity basis.

The court rejected the plaintiff's arguments of divided success and public interest litigation, finding that the defendants were entirely successful.

Applying Rule 57.01(1) factors, the court found the defendants' requested costs reasonable, noting the complexity and high stakes of the litigation, and awarded costs as requested.

The defendants brought a motion for a declaration that the plaintiff's statutory secondary market misrepresentation claim under Part XXIII.1 of the Securities Act was statute-barred.

The plaintiff brought a cross-motion seeking an order granting leave nunc pro tunc to save the claim.

The court found that while the plaintiff was not barred by issue estoppel or abuse of process from arguing for a nunc pro tunc order, the request failed on its merits.

Applying the Supreme Court's decision in CIBC v. Green, the court held that a nunc pro tunc order was not available because the plaintiff had not filed a motion for leave before the expiry of the limitation period, and the equitable factors did not favour granting the order.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

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.

The plaintiffs brought an unsuccessful refusals motion in a proposed class action.

The successful defendant sought $30,000 in costs on a partial indemnity basis.

The plaintiffs argued the amount was excessive for an uncomplicated motion and suggested $5,000.

The court found the motion was important and vigorously contested, but agreed the defendant's claim was excessive.

Costs were fixed at $18,000 payable to the defendant in any event of the certification motion.

The applicant sought to enforce letters rogatory issued by a United States District Court compelling Ontario non-parties to provide testimony and documents for use in U.S. antitrust class actions alleging polyurethane foam price‑fixing.

The court applied the established criteria governing enforcement of foreign letters rogatory, including relevance, necessity, availability of evidence elsewhere, public policy concerns, specificity, and burden.

The court found the criteria satisfied for two respondents and held that enforcement would not violate Canadian sovereignty or the respondents’ Charter protections against self‑incrimination.

The application was granted with conditions requiring examinations to proceed under Ontario procedural rules and subject to Charter and Evidence Act protections, while the application against a third respondent was dismissed due to insufficient evidentiary basis.

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 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 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.