Michael G. Robb

In a class proceeding, the court determined costs arising from motions concerning the approval of the form, content, and timing of a certification notice and a motion by a class member to participate.

The participating class member was granted leave under s. 14 of the Class Proceedings Act to participate in the notice motion.

Although the plaintiffs succeeded on the timing of notice and the participating class member succeeded on participation, neither side was fully successful regarding the notice content, particularly concerning references to related U.S. proceedings.

The court held that class members who actively participate may be exposed to costs under s. 14(2), notwithstanding the protection for passive class members under s. 31.

However, given the novelty of issues concerning overlapping global class members and parallel U.S. proceedings, the court declined to award costs to any party.

In a proposed securities class action concerning alleged misrepresentations in the prospectus and registration statement for a July 2010 initial public offering, the plaintiff sought court approval to discontinue the action against several underwriter defendants.

Approval was required under s. 29 of the Class Proceedings Act, 1992.

The discontinuance followed a standstill agreement that allowed the claims to be discontinued without costs while tolling limitation periods and preserving the plaintiffs’ ability to revive claims if recovery from vendor defendants became materially less likely.

The court found the discontinuance would not prejudice the proposed class and could reduce litigation costs and potential adverse costs exposure.

Approval was granted and leave was also granted to deliver a Fresh as Amended Statement of Claim.

The plaintiffs in an Ontario securities class action moved for approval of the notice of certification.

The lead plaintiff in parallel U.S. proceedings, who was also a member of the Ontario global class, moved to participate in the motion, arguing that the notice should be delayed and should include detailed information about the U.S. proceedings.

The court granted the U.S. plaintiff standing to participate but held that the notice of certification should be issued promptly to protect class members' litigation autonomy.

The court determined that the notice should inform class members of the existence of the U.S. proceedings but should not include detailed or comparative information, as that would be confusing and unnecessary at this stage.

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

The defendants and proposed defendants sought leave to appeal a motion judge's ruling on a Rule 21 motion, an order certifying the proceeding as a class proceeding, and an order granting the plaintiffs leave to commence an action under the Securities Act.

The court granted leave to appeal the Rule 21 motion in relation to the pleadings of negligence and negligent misrepresentation, noting that two recent Supreme Court of Canada decisions created a correctness and conflict issue.

Consequently, leave to appeal the certification order was also granted.

Furthermore, the court granted the proposed defendants leave to appeal the order allowing proceedings against them under the Securities Act, finding good reason to doubt the correctness of the motion judge's determination that they were de facto officers of the Income Fund.

Following a successful appeal by the insurer that decertified a class proceeding due to a change in the law, the parties made submissions on costs.

The insurer sought costs of the appeal and the certification motion, while the representative plaintiff and the Class Proceedings Fund argued for no costs.

The Divisional Court declined to award costs to either party for the appeal, the motion for leave to appeal, or the certification motion, finding that the proceeding raised novel issues of law and matters of broad public interest under section 31 of the Class Proceedings Act.

The appellant insurer appealed a decision certifying a class proceeding regarding the application of deductibles to total loss automobile claims.

After the initial certification motion was remitted by the Court of Appeal, a subsequent five-member panel of the Court of Appeal in a different case (Polowin) reversed the interpretation of the relevant statutory condition, finding that insurers could apply deductibles.

The Divisional Court held that putative class members were not privies to the representative plaintiff prior to certification, meaning issue estoppel did not apply.

As the current law established no cause of action, the certification order was set aside.

The court appointed an inspector to investigate the affairs of the appellant corporation and ordered the appellants to fund the inspector's work.

The appellants appealed the order and argued that the funding requirement was an 'order for the payment of money' automatically stayed under Rule 63.01(1) of the Rules of Civil Procedure.

The Divisional Court held that an order to fund a court-appointed inspector is not an order for the payment of money, as it does not give monetary relief to a party and cannot be enforced by a writ of seizure and sale.

The court declared the automatic stay inapplicable and, in the alternative, exercised its discretion to lift the stay.

The appellants' cross-motion for a stay was dismissed.

The applicant sought judicial review of an arbitrator's award on a policy grievance, arguing the arbitrator exceeded his jurisdiction by making factual findings related to individual grievances that were not before him.

The Divisional Court dismissed the application, finding that the arbitrator properly used uncontested background facts to provide context for the broad policy award.

The court held that determining facts relevant to the award was within the arbitrator's jurisdiction, and his findings were not patently unreasonable.