Michael D. Schafler

The defendants brought a motion to amend the class definition in a certified data breach class action.

They sought to narrow the class to persons who had active leases or loans with Nissan during a specific period, based on evidence that the stolen data sample only contained information from that timeframe.

They also sought to exclude corporate customers.

The court granted the motion to amend the timeframe, finding it supported by the evidence, but declined to exclude corporate customers at this stage, holding that the issue of whether corporations can claim intrusion upon seclusion should be determined as a separate question of law.

The plaintiffs brought a motion to approve a US$90 million settlement of a class action against the defendant auditors for alleged negligence and misrepresentation in auditing a company's financial statements.

The court considered the significant litigation risks, the defences advanced, and the depletion of the defendants' insurance coverage.

Finding the settlement fair, reasonable, and in the best interests of the class, the court approved the settlement.

The court also approved class counsel's contingency fee request of approximately $21.9 million, noting the substantial risk undertaken and the successful result achieved after 17 years of litigation.

Following a successful partial summary judgment motion, the defendants sought costs of $700,000 plus disbursements payable forthwith.

The plaintiffs argued costs should be in the cause.

The court agreed with the plaintiffs that costs should be in the cause, as the trial was imminent and the trial judge would be in the best position to allocate liability for costs.

The court clarified that the costs would be in the cause of the specific plaintiff's action, not the consolidated action involving a receiver.

Lenders brought a class proceeding alleging negligent misrepresentation by auditors in connection with audited financial statements relied upon when extending a large syndicated loan.

The defendants moved for partial summary judgment dismissing the negligent misrepresentation claim on the basis that no duty of care was owed to the lending syndicate.

Applying the principles from Hercules Managements Ltd. v. Ernst & Young, the court held that auditors generally owe duties to the corporation and its shareholders but not to third-party lenders due to concerns about indeterminate liability.

Although the auditors knew lenders would likely review the statements, they did not know the identity of the lenders nor prepare the audits for the specific lending transaction.

The court concluded the circumstances did not negate indeterminate liability and no duty of care arose.

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.