Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210901 DOCKET: C67681

Hoy, Brown and Thorburn JJ.A.

BETWEEN

The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund and Royce Lee Plaintiffs (Appellants)

and

Barrick Gold Corporation, Aaron W. Regent, Jamie C. Sokalsky, Ammar Al-Joundi and Peter Kinver Defendants (Respondents)

Counsel: Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi, for the appellants Kent E. Thomson, Luis Sarabia and Steven G. Frankel, for the respondents

Heard: November 9 and 10, 2020 by video conference, with further written submissions filed on November 23, 2020.

On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated October 9, 2019, with reasons reported at 2019 ONSC 4160, 148 O.R. (3d) 755.

Costs Endorsement

[1] In reasons released on February 19, 2021, the court ordered that if the parties were unable to agree on costs of the appeal and the motion below, the appellants shall make written submissions not exceeding five pages within 14 days of release of the reasons, and the respondents shall make written submissions not exceeding five pages within 10 days after the appellants make their submissions.

[2] In a letter to the Registrar of the court dated August 16, 2021, which was forwarded to the panel, counsel for the appellants inquired about the panel’s disposition of the costs of the appeal and motion below and provided copies of the costs submissions which counsel advised had filed been with the court on March 5, 2021 (appellants) and March 15, 2021 (respondents).

[3] Regrettably, through administrative oversight, those costs submissions had not been previously provided to the panel, and the panel assumed that the parties had agreed on costs.

[4] The panel has now reviewed the costs submissions included with appellants’ counsel’s letter.

[5] The motion judge, Belobaba J., denied the appellants leave to proceed under s. 138.3 of the Ontario Securities Act, R.S.O. 1990, c. S.5 in respect of the categories of alleged misrepresentations described in the court’s reasons as the capex and scheduling misrepresentations and the accounting and financial reporting misrepresentations (collectively, the “alleged financial misrepresentations”). Whether he erred in principle in so doing was the primary issue on appeal.

[6] The motion judge granted leave to the appellants to proceed with what he characterized as their “core” environmental claim but denied leave with respect to four alleged misrepresentations by omission with respect to environmental compliance. We agree with the motion judge’s characterization of the environmental claim in respect of which he granted leave as the appellants’ “core” environmental claim. The respondents did not cross-appeal the motion judge’s grant of leave with respect to the “core” environmental claim.

[7] The court concluded that the motion judge erred in principle in denying leave in respect of the alleged financial misrepresentations and returned the issue of whether leave should be granted in respect of them to the court below, to be determined by a judge selected by the administrative judge of the class actions team in Toronto. The parties advise that Akbarali J. has been selected to determine whether leave should be granted in respect of the alleged financial misrepresentations.

[8] As to the secondary issue on appeal, the court concluded that there was no basis for it to interfere with the motion judge’s denial of leave to proceed with the four alleged misrepresentations by omission with respect to environmental compliance.

[9] The parties agreed that costs of the appeal in the amount of $60,000, all inclusive, would be awarded to the successful party on the appeal. The appellants succeeded on the central issue before the court. They were substantially successful. Accordingly, they are entitled to costs of the appeal in the amount of $60,000, all inclusive.

[10] The appellant brought one motion for leave to proceed. The motion judge awarded no costs of the motion on the basis that success was divided. The costs of both portions of the motion for leave shall be determined by Akbarali J. once she has determined whether to grant leave in respect of the alleged financial misrepresentations and the overall outcome of the motion is known.

“Alexandra Hoy J.A.”

“David Brown J.A.”

“J.A. Thorburn J.A.”