Court File and Parties
CITATION: LBP Holdings Ltd. v. Cormark Securities Inc., 2018 ONSC 6050
DIVISIONAL COURT FILE NO.: 709/17 DATE: 2018/10/11
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, MULLINS and MYERS JJ.
BETWEEN:
LBP HOLDINGS LTD.
Eli Karp and Jennie M. Brodski, for the Plaintiff (Appellant)
Paul J. Bates, for Morganti & Co. PC
Plaintiff/Moving Party on Motion to Set Aside
– and –
HYCROFT MINING CORPORATION, SCOTT A. CALDWELL, ROBERT M. BUCHAN, CORMARK SECURITIES INC., and DUNDEE SECURITIES LTD.
Gillian B. Dingle and Alexandra Shelley, for the Respondent Cormark Securities Inc. and Dundee Securities Ltd.
Defendant/Respondent
HEARD at Toronto: October 11, 2018
Oral Reasons for Judgment
SACHS J. (Orally)
[1] This is a motion to set aside the order of Thorburn J. in which she quashed the Appellant’s appeal of Perell J.’s order. In his order, Perell J. refused to certify the Appellant’s claims as against the Respondents, Cormark Securities Inc. and Dundee Securities Ltd.
[2] Because Perell J. had certified the Appellant’s claims as against other defendants, Thorburn J. found that the Appellants required leave to appeal.
[3] The parties agree that this motion turns on a question of statutory interpretation and therefore the standard of review for us to apply is correctness.
[4] The particular statutory provision at issue is s. 30 of the Class Proceedings Act which reads as follows:
Appeals:
30 (1) A party may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding.
(2) A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court.
[5] The question raised on this appeal is what happens when an order certifies certain claims as against certain defendants and does not certify other claims against other defendants? Is leave required or is it not?
[6] The Appellant submits that s. 30 must be read purposefully as opposed to literally. They also submit that to answer the question posed this Court should follow the reasoning in Cavanaugh v. Grenville Christian College, 2013 ONCA 13 (which was on a different issue) and look to the substance of the order in question. The Appellant argues that in this case, the substance of the order was to deny certification of their claims as against the Respondents.
[7] The Respondents submit that the issue before us has already been dealt with by the Court of Appeal in Ludwig v. 1099029 Ontario Ltd., 2007 ONCA 266 and that the motion judge appropriately followed the reasoning in that case.
[8] We agree with the Respondents. While the facts in Ludwig were not the same as the facts in this case, the reasoning in that case does bind us. At para. 19 of Ludwig, the Court of Appeal states as follows:
- I can see neither a rule of statutory interpretation nor any policy argument that derogates from the conclusion that the words of ss. 30(1) and (2) of the Class Proceedings Act are clear and logical. Where an order for certification has been made, the action should be able to continue without waiting for an appeal process that may unduly delay the proceeding. Delaying the progress of a class action would be justified only if leave were to be granted, because then there would be an issue of particular importance to be determined. On the other hand, if certification is refused, then there is no class action and an appeal in that circumstance is required. To interpret the exclusion of people from the certified class as a refusal to certify the action effectively stops the action while the excluded plaintiffs appeal as of right. In my view, such a result would not advance the purpose of the Act, which seeks to facilitate access to justice and the principles of effective and timely use of the judicial process.
[9] The Appellant essentially argues that the reasoning in Ludwig should be limited to its facts which were that certain people had been excluded from the class. As already noted, we disagree. The reasoning in Ludwig is not limited to the specific facts before it and has in fact been applied in other circumstances (see Shah v. LG Chem Ltd., 2016 ONSC 467 (Div. Ct) and Berg v. Canadian Hockey League, 2017 ONSC 6719 (Div. Ct.)).
[10] In our view, Ludwig stands for the proposition that the language in s. 30 is clear and logical and that the purpose of this section is to allow for an action that has been certified to proceed expeditiously without being delayed by appeals unless those appeals have met the test for leave.
[11] For these reasons, the motion to vary is dismissed.
[12] As a class proceeding has been certified, the Appellant has the right to appeal to Divisional Court with leave pursuant to s. 30(2) of the Class Proceedings Act.
[13] I have endorsed the Motion Record of the Moving Party as follows: “For reasons delivered orally, the motion is dismissed. As agreed, the Respondents are entitled to their costs of this motion, fixed in amount of $12,500, all inclusive.”
___________________________ SACHS J.
I agree
MULLINS J.
I agree
MYERS J.
Date of Reasons for Judgment: October 11, 2018
Date of Release: October 12, 2018
CITATION: LBP Holdings Ltd. v. Cormark Securities Inc., 2018 ONSC 6050
DIVISIONAL COURT FILE NO.: 709/17 DATE: 2018/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, MULLINS and MYERS JJ.
BETWEEN:
LBP HOLDINGS LTD.
Plaintiff/Moving Party on Motion to Set Aside
– and –
HYCROFT MINING CORPORATION, SCOTT A. CALDWELL, ROBERT M. BUCHAN, CORMARK SECURITIES INC., and DUNDEE SECURITIES LTD.
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: October 11, 2018
Date of Release: October 12, 2018