Michael G. Robb

A carriage motion was brought to determine which of two competing groups of class action firms should conduct a proposed securities class proceeding against a mining company and its executives arising from alleged misrepresentations about a Chilean mining project.

One action advanced a single claim based on environmental misrepresentations, while the competing action advanced multiple claims including environmental, capital expenditure, accounting misrepresentation, conspiracy, and limitation‑related doctrines.

The court held that on a carriage motion the judge should not determine which claim is most likely to succeed but should assess whether claims are viable and free of obvious defects.

The competing action advancing multiple viable claims and demonstrating a substantially higher level of preparation was found to better serve the interests of the class.

Carriage was therefore granted to the more comprehensive and better prepared action.

The accused was convicted of multiple counts of drug trafficking (heroin, methamphetamine, cocaine) and simple possession after concealing the drugs in his anal cavity.

The accused had a significant prior criminal record for drug trafficking and showed no remorse or effort toward rehabilitation.

The court emphasized denunciation and deterrence, sentencing the accused to a global term of 10 years' incarceration, reduced to 7 years, 3 months, and 24 days after credit for pre-sentence custody.

The court also ordered a lifetime weapons prohibition, forfeiture of seized property, and a DNA sample.

In a leave application under Part XXIII.1 of the Securities Act alleging failure to disclose a material change in mining operations, the parties brought competing motions to strike expert and fact affidavits.

The respondents sought to strike the applicant’s mining expert affidavit on the basis that it improperly opined on legal issues, relied on false assumptions, and lacked independence.

The applicant sought to strike several fact and expert affidavits filed by the respondents, arguing they violated Rule 39.01(5), relied on hearsay, and attempted to shield witnesses from cross-examination.

The court held that expert evidence may rely on second-hand information and that Rule 39.01(5) does not govern admissibility of expert opinion.

The alleged conflicts and factual disputes affected weight rather than admissibility.

Both motions to strike were dismissed and no costs were awarded.

The accused was charged with importing cocaine and possession for the purpose of trafficking after a brick of cocaine wrapped in his T-shirt was found in the fuse box of a commercial truck he was a passenger in.

The truck was driven by a co-accused who testified against him.

Applying the W. (D.) test and a Vetrovec caution, the court rejected the accused's testimony as incredible and found him guilty on both counts based on circumstantial evidence, video surveillance, and the co-accused's testimony.

The accused, charged with multiple offences under the Controlled Drugs and Substances Act for possession of heroin, methamphetamine, cocaine, and hydromorphone for the purpose of trafficking, brought a Charter application seeking exclusion of drug evidence discovered while he was detained in a police “dry cell.” Police had obtained a general warrant under s. 487.01 of the Criminal Code authorizing detention until the accused passed drugs concealed in his anal cavity.

The accused argued that the warrant and the delay in bringing him before a justice violated ss. 7, 8, and 9 of the Charter and s. 503 of the Criminal Code.

The court held the warrant was valid and that the “dry cell” detention constituted the least intrusive method available to recover the drugs given the accused’s concealment method.

Even if Charter breaches occurred, the court concluded the evidence would not be excluded under s. 24(2) given the seriousness of the offences and police good faith.

The offender pleaded guilty to possession of methamphetamine for the purpose of trafficking.

The Crown sought four years imprisonment while the defence argued for a two-year penitentiary sentence.

The court imposed a 30-month sentence, classifying the offence as low-level trafficking based on the quantity of 69 grams seized.

The court considered mitigating factors including guilty plea, remorse, and rehabilitation efforts against aggravating factors including prior criminal record and the commercial nature of the offence.

A lifetime firearms prohibition under section 109 of the Criminal Code was imposed, along with a DNA order and forfeiture of seized items.

In a securities class action concerning alleged misrepresentations in the prospectus and offering materials for a company’s 2010 initial public offering, the representative plaintiff moved for court approval of a settlement under the Class Proceedings Act, 1992.

The settlement provided for a global payment of USD $15,250,000 to resolve claims by Canadian and U.S. investors, with a coordinated cross‑border approval process and a shared claims administration.

The court applied the established criteria for approval of class action settlements, including the likelihood of success, litigation risks, counsel’s recommendations, the reasonableness of the terms, and the absence of objections.

Finding the settlement fair, reasonable, and in the best interests of the class, the court approved both the settlement and the plan of allocation, as well as class counsel’s requested contingency fees and litigation expenses.

The accused was stopped for a traffic violation.

The investigating officer, noting the accused's nervous demeanour, evasive answers, and the presence of a baseball bat and knife in the vehicle, detained the accused for officer safety.

During a pat-down search, the officer discovered cocaine in the accused's pocket.

The accused brought an application to exclude the evidence under s. 24(2) of the Charter, alleging violations of his rights under ss. 7, 8, 9, and 10(b).

The court dismissed the application, finding that the investigative detention and pat-down search were justified based on the totality of the circumstances and officer safety concerns.

The accused pleaded guilty to multiple offences including sexual interference with a minor, making and possessing child pornography, smuggling obscene materials, and breaching recognizance conditions.

The court emphasized denunciation and deterrence, noting the severe emotional impact on the victim and the accused's flagrant breaches of bail conditions by re-offending.

The accused was sentenced to a global term of 6 years in custody, reduced to 4.5 years net after applying a 1.5:1 enhanced credit for pre-sentence custody due to physical assaults suffered in jail.

The plaintiffs sought consent certification of a proposed securities class action alleging that the defendant mining company and certain officers misrepresented the scope and impact of water inflow problems at a Quebec gold mine, causing losses to purchasers of the company’s shares.

The court considered the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and, given the parties’ consent and the evidentiary record, found that the statutory criteria were satisfied.

The plaintiffs also sought leave under Part XXIII.1 of the Securities Act to pursue statutory secondary market misrepresentation claims.

The court held that the action was brought in good faith and that there was a reasonable possibility of success at trial.

Certification and leave were granted.

The accused brought an application under s. 24(2) of the Charter seeking exclusion of evidence obtained during the execution of a telewarrant at his residence on drug trafficking charges.

The defence argued the telewarrant lacked sufficient grounds because it relied heavily on information from a confidential informant and contained an error regarding the accused’s vehicle.

The court applied the Debot framework assessing the compelling nature of the tip, the credibility of the source, and police corroboration.

Despite a mistake in the information to obtain, the court found the informant’s observations, partial corroboration by police records and surveillance, and prior reliability of the source sufficient to justify the warrant.

The court concluded the totality of the circumstances supported issuance of the telewarrant and refused to exclude the evidence.

The defendants brought a motion to amend the class definition in an Ontario securities class action to exclude persons who would be bound by a pending settlement in parallel U.S. class proceedings.

The U.S. settlement was conditional on the Ontario court granting this amendment.

The court applied the Currie factors and recognized the U.S. court's judgment approving the settlement, finding that the U.S. court had a real and substantial connection to the claims, and that the absent class members were accorded procedural fairness and adequate representation.

The court further determined that amending the class was the preferable procedure, as it would facilitate access to justice for the overlapping class members without unfairly prejudicing the remaining class members.

The motion was granted and the class definition was amended.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.

In a proposed securities class action arising from the takeover of a mining company through a joint bid on the Toronto Stock Exchange, multiple defendant groups moved to transfer the proceeding from London, Ontario to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs opposed the transfer, asserting that the dispute had multinational elements and that no venue factor strongly favoured Toronto.

The court held that the defendants failed to establish that a transfer was desirable in the interests of justice and dismissed the transfer motions.

The plaintiffs also moved to stay a related statutory valuation proceeding involving dissenting shareholders under the Business Corporations Act.

The court granted a temporary stay, finding substantial overlap in factual and expert valuation issues and concluding that a stay would avoid duplication of proceedings and promote access to justice.

The plaintiff brought a motion to certify a proposed class action for damages pursuant to s. 130 of the Securities Act.

The defendants consented to certification, except for the plaintiff's proposed class definition which included purchasers in the secondary market.

The court held that s. 130(1) of the Act does not provide a statutory cause of action to purchasers in the secondary market, and revised the class definition accordingly before granting certification.

Two accused were jointly charged with multiple drug trafficking and firearms offences following a police traffic stop and brief pursuit.

Controlled substances were discovered in plain view on the centre console of the vehicle, and a civilian witness observed the passenger discard a plastic bag containing a handgun nearby.

The court held that both accused had joint knowledge and control of the drugs and were guilty of possession and possession for the purpose of trafficking.

The driver was convicted of fleeing police and dangerous driving but acquitted of the joint firearm offences due to reasonable doubt regarding knowledge of the firearm.

The passenger was found guilty of all firearm-related offences and possession while prohibited.

In a securities class proceeding, the plaintiffs sought costs following successful motions in which they opposed summary judgment and obtained nunc pro tunc relief permitting pursuit of a statutory claim despite the expiry of a limitation period under the Securities Act.

The defendants argued that no costs should be awarded due to alleged delay by the plaintiffs, the alleged unnecessary nature of the cross‑motion, and the claim that the plaintiffs succeeded on grounds not advanced by their counsel.

The court rejected these arguments, finding no delay attributable to the plaintiffs and confirming that the cross‑motion seeking nunc pro tunc relief was appropriate.

The court held that the plaintiffs succeeded on their arguments regarding the court’s nunc pro tunc authority and the interpretation of the Court of Appeal’s Timminco decision.

Applying the general rule that costs follow the event, the court awarded the plaintiffs their claimed partial indemnity costs.

The accused applied under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence obtained after Canada Border Services Agency officers examined his cell phone during a secondary inspection at the Sarnia border crossing.

Police had previously created a border 'Lookout' based on an investigation suggesting the accused possessed child pornography but lacked sufficient grounds for a warrant.

During a routine secondary inspection triggered by the lookout, an officer briefly viewed the accused’s phone and observed an image believed to be child pornography, leading to arrest and further searches.

The court held that routine border searches of goods, including electronic devices, fall within the powers granted under s. 99 of the Customs Act and do not engage the same privacy expectations as domestic searches.

The application to exclude the evidence was dismissed.

During a drug raid, the accused was arrested and given his right to counsel multiple times.

He initially nodded his head indicating a desire to speak to counsel, but later told the booking officer 'not really' when asked if he wished to contact a lawyer now.

He subsequently made spontaneous statements to an investigating officer before being cautioned again.

The Crown applied to admit the statements as voluntary, while the defence applied to exclude them under ss. 7, 10(b), and 24(2) of the Charter.

The court found the statements were voluntary.

The court also found a technical breach of s. 10(b) because the police failed to clarify the accused's change of mind regarding counsel.

However, applying the Grant framework, the court declined to exclude the evidence under s. 24(2), concluding the breach was minor and the accused clearly understood his rights but chose not to exercise them.

The defendants moved for summary judgment to dismiss the plaintiffs' statutory claims for secondary market misrepresentation under the Securities Act, arguing the claims were statute-barred by the three-year limitation period in s. 138.14.

The plaintiffs had brought a motion for leave to assert the statutory claims within the limitation period, but the limitation period expired while the court's decision on the leave motion was under reserve.

The court held that it had inherent jurisdiction and authority under the Rules of Civil Procedure to grant the leave order nunc pro tunc (retroactively) to the date the leave motion was argued, applying the actus curiae maxim to prevent injustice caused by the court's delay.

The defendants' motion for summary judgment was dismissed, and the plaintiffs were permitted to amend their statement of claim effective the date the leave motion concluded.