Michael G. Robb

In a class proceeding against the Bank of Montreal, class counsel brought a motion for approval of their fees and an honourarium for the representative plaintiffs.

The court approved a $5,000 honourarium, finding the representative plaintiffs meaningfully contributed to access to justice and assumed active roles without financial risk.

The court also approved class counsel's fees at 25% of the settlement funds, totaling over $3.6 million plus disbursements, noting the 2.6 multiplier was appropriate given the significant risks assumed by counsel.

This decision addresses competing carriage motions in proposed class actions concerning business interruption insurance claims related to the COVID-19 pandemic.

The court considered an "omnibus" action against 16 insurers and several focused actions against Aviva.

The court ruled that the Aviva-specific actions should proceed expeditiously, carved out from the omnibus action, with the Nordik Consortium and Lerners LLP appointed as carriage counsel for the Aviva claims.

The Workman Consortium was appointed carriage counsel for the omnibus action, excluding the Aviva defendants.

The decision prioritized the best interests of the class, fairness to defendants, and the objectives of the Class Proceedings Act, particularly access to justice and expeditious determination.

The defendants brought motions across five Canadian jurisdictions to address overlapping multijurisdictional class actions regarding a data breach.

The parties reached a settlement to proceed only with the Ontario national class action and stay the actions in British Columbia, Alberta, Québec, and Nova Scotia.

The Ontario Superior Court of Justice approved the consent order dismissing the stay motion in Ontario, allowing the action to proceed subject to bi-annual reporting requirements to the case management judges in the other jurisdictions.

The defendant in a proposed class action regarding mutual fund trailing commissions sought a direction that its proposed summary judgment motion be heard concurrently with the plaintiff's certification motion.

The court dismissed the request, finding that the summary judgment motion would require significant responding evidence, lengthy cross-examinations, and would increase expense and delay.

The court held that hearing the certification motion first would be more efficient and could narrow the issues for any subsequent summary judgment motion.

The moving party brought a motion for leave to appeal to the Divisional Court.

The court dismissed the motion for leave to appeal.

On agreement of the parties, costs were fixed at $10,000 payable to the successful respondent.

The plaintiff, a shareholder of the corporate defendant, sought leave to commence a secondary market misrepresentation claim under the Securities Act following the collapse of a tailings storage facility at the defendant's mine.

The plaintiff alleged that the defendant knew or ought to have known of the facility's compromised structural stability and failed to disclose it.

The court dismissed the motion for leave, finding that the plaintiff failed to establish a public correction of the alleged misrepresentation.

The press release issued by the defendant merely stated that the facility had breached and the cause was unknown, which did not indicate that any previous disclosure was untrue or misleading.

The Quebec Plaintiffs and the Defendants brought motions for leave to appeal an order of Belobaba J. dated November 21, 2019.

The Divisional Court dismissed both motions for leave to appeal.

Costs of $2,500 were ordered payable by each of the moving parties to the responding Ontario Plaintiffs.

The plaintiff, a debentureholder, sought to bring a class action for oppression against certain shareholders, directors, and officers of Discovery Air Inc. The defendants argued the plaintiff lacked standing due to a 'no-action clause' in the trust indenture, which they claimed required trustee authority or satisfaction of specific preconditions.

The court found that the trust indenture, when read holistically, did not preclude the plaintiff's direct action.

Alternatively, the court determined that the plaintiff had met the preconditions, including the 25% debentureholder support and a reasonable offer of indemnity, despite the trustee's commercially unreasonable demands.

The plaintiff's motion was granted, allowing the oppression action to proceed.

The Ontario Plaintiff moved to quash the Quebec Plaintiff's appeal of an order dismissing a motion to stay the Ontario class action.

The Court of Appeal held that the refusal to stay the Ontario Action is an interlocutory order, not a final order, because it does not determine any substantive right to relief or substantive defence.

As the order is interlocutory, the appeal lies to the Divisional Court with leave, not to the Court of Appeal.

The appeal was quashed for lack of jurisdiction.

The plaintiff moved to certify a proposed class action against TD Asset Management Inc. (TDAM) alleging that TDAM improperly paid "trailing commissions" to discount brokers for "service and advice" that was not provided, thereby wasting Mutual Fund assets and causing investor losses.

The court granted certification for claims of breach of trust, breach of fiduciary duty, disallowance of improper expenses under s. 23.1 of the Trustee Act, and prospectus misrepresentation.

However, claims for knowing assistance, knowing receipt, and unjust enrichment were struck as analytically unworkable or lacking a proper basis in fact.

The court affirmed the plaintiff's standing as a unitholder to sue the trustee and manager, and found the class definition and common issues suitable for certification, reiterating that certification is a low hurdle not concerned with the merits.

The plaintiffs in a Quebec class action and the defendants brought motions to stay a parallel Ontario class action alleging securities misrepresentations.

The moving parties argued the Ontario action was duplicative and an abuse of process.

The court dismissed the motions, finding that the Ontario action was more comprehensive and not duplicative of the Quebec action when it was filed.

The court held that issues of preferability between parallel multi-jurisdictional class actions are better addressed at the certification stage rather than through a pre-certification stay motion for abuse of process.

Two competing consortiums of class counsel brought a carriage motion to determine who would represent the proposed class in a national class action against Marriott regarding a massive data breach.

The court evaluated the standard carriage factors, finding most to be neutral.

The determinative factor was the interrelationship of class actions in multiple jurisdictions.

The court favoured the Winder Action because its counsel did not concede the necessity of overlapping regional class actions and was prepared to use multi-jurisdictional protocols to resolve the overlapping claims, whereas the Kogut Action consortium planned to run multiple overlapping actions across Canada.

Carriage was granted to the Winder Action and the competing actions were stayed.

The offender pleaded guilty to trafficking fentanyl and criminal negligence causing death after selling cocaine laced with fentanyl to the victim, who subsequently died of an overdose.

The offender admitted to wilful blindness, having told the victim the drugs were a 'real head-spinner'.

The court rejected a suspended sentence, emphasizing denunciation and deterrence for fentanyl trafficking, and sentenced the offender to three years' imprisonment.

This decision addresses a carriage motion between two proposed class actions against Aphria Inc. and other defendants, both alleging misrepresentations in the secondary market and oppression remedy claims.

The "Mirzoian-Rogers Action" (LATAM Theory) proposed a narrower class based primarily on the LATAM Transaction, while the "Vecchio Action" (Nuuvera+LATAM Theory) proposed a broader class period and additional causes of action encompassing both the Nuuvera and LATAM Transactions.

The court granted carriage to the Vecchio Action, finding its broader case theory to be in the best interests of the class by providing greater access to justice for a larger group of claimants, despite criticisms regarding the pleading of partial corrective disclosures for the Nuuvera Transaction.

The court emphasized that a carriage motion is not the appropriate forum to definitively resolve complex legal issues like the full effect of corrective disclosures.

The Plaintiffs in a class action sought court approval for a settlement agreement, a distribution plan, an honorarium for representative plaintiffs, and Class Counsel's fees and disbursements.

The class action, initiated in 2012, involved common law misrepresentation and statutory claims under the Ontario Securities Act for secondary market misrepresentations against SNC-Lavalin Group Inc. and its officers/directors.

After extensive litigation, including interlocutory motions, discovery, and two mediations, a settlement of $110 million was reached.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the complexities and risks of the litigation.

The distribution plan and honoraria for representative plaintiffs were also approved.

Class Counsel's fee request of $25.25 million (22.95% of the settlement) plus disbursements and taxes was approved, recognizing the significant risk undertaken and the results achieved.

This is a motion for leave to appeal an order certifying a class action proceeding, specifically challenging the certification of oppression-based common issues.

The moving parties (Baffinland Iron Mines and three individual defendants) argued that previous decisions precluded class proceedings based on oppression claims due to the need for individual shareholder expectation assessments.

The court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the original order.

The court held that the motions judge correctly applied appellate precedent that oppression claims do not necessarily require explicit evidence of each individual shareholder's expectations at the certification stage, provided common shareholder expectations are objectively reasonable and specifically pleaded.

The plaintiffs brought a motion to certify a proposed shareholder class action arising from the successful joint take-over bid for Baffinland Iron Mines Corporation.

The plaintiffs asserted claims for circular misrepresentation, insider trading, oppression, and unjust enrichment.

The court found that the plaintiffs met the requirements for certification under s. 5 of the Class Proceedings Act.

The court excluded compulsory acquisition security holders from the class definition but included secondary market sellers.

The court also held that the oppression claims raised common issues and that a class action was the preferable procedure.

The defendant, a 47-year-old man with a previously clean record, was sentenced for trafficking in fentanyl patches.

Following a workplace electrocution eight years prior, the defendant was lawfully prescribed fentanyl for pain management.

He became addicted to the drug, abused his prescription by chewing used patches, and gave patches to his brother-in-law who was experiencing severe back pain.

To cover his tracks, he fabricated fake used patches.

The defendant pleaded guilty to trafficking.

The Crown sought a penitentiary sentence of three to four years.

The court imposed a suspended sentence with three years of probation, 100 hours of community service, and various conditions including substance abuse counselling and a weapons prohibition.

The accused was stopped by police after passing several vehicles at a high rate of speed and was found to be impaired by marihuana.

Police also discovered 18 grams of marihuana, for which the accused held a valid medical prescription.

The Crown argued that lawful possession became unlawful once the drug was used in the commission of impaired driving.

The court rejected this argument, distinguishing precedent on innocent possession becoming unlawful and holding that possession remained lawful because the substance had been validly prescribed and obtained.

As the admitted facts did not disclose the offence of unlawful possession under the Controlled Drugs and Substances Act, the guilty plea on that charge was struck.

A secondary market misrepresentation class action was brought against a coal mining company and its former CFOs and directors following the company's restatement of financial statements for 2010-2012.

The motion judge granted leave to proceed against the company but denied leave against the individual defendants, finding they had established a reasonable investigation defence.

The Court of Appeal reversed, holding that the motion judge erred by treating the leave motion as a mini-trial and failing to consider significant credibility issues and gaps in the evidentiary record.

The court found that the defendants' position—that they should evade liability because they previously made material misrepresentations in the restatement but are now telling the truth—was inconsistent with fundamental securities regulation principles requiring scrupulous continuous disclosure.