CITATION: Dugal, Murphy v. Manulife Financial Corporation, 2013 ONSC 327
DIVISIONAL COURT FILE NO.: 9/13
DATE: 20130114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARK DUGAL, AARON MURPHY, HARLEN BOMBERRY, JOHN O’MALLEY, GAETAN SIGUOIN, ARMAND CHARBONNEAU, PAUL MITCHELL, STEVEN MOFFATT, JOHN VASCONCELOS AND DAVID THOMPSTONE AS TRUSTEES OF THE IRONWORKERS ONTARIO PENSION FUND AND LEONARD SCHWARTZ
Appellants
(Plaintiffs)
– and –
MANULIFE FINANCIAL CORPORATION, DOMINIC D’ALESSANDRO, GAIL C.A. COOK-BENNETT, ARTHUR R. SAWCHUK AND PETER RUBENOVITCH
Respondents
(Defendants)
A. Dimitri Lascaris and Michael D. Wright, for the Plaintiffs
Patricia D. S. Jackson and Andrew Gray¸for the Respondent/Defendant, Manulife Financial Corporation
Linda Fuerst, for the Defendant, Dominic D’Alessandro
David D. Conklin, for the Defendants, Gail C.A. Cook–Bennett and Arthur R. Sawchuk
Eric S. Block and Byron D. Shaw, for the Defendant, Peter Rubenovitch
HEARD at Toronto: January 14, 2013
HARVISON YOUNG J. (orally)
[1] This motion for leave to appeal arises out of a class action proposed by the plaintiff investors alleging inadequacies in Manulife Financial Corporations Risk Management Policies and Practices.
[2] The plaintiffs have asserted a cause of action under Part XX111.1 of the Ontario Securities Act for secondary market misrepresentation with respect of which they require leave under s. 138.8(1) of the Act.
[3] This leave motion and the certification motion are to be heard in March, 2013, at least as presently scheduled. The defendants advised the plaintiffs that they would not be filing any affidavits on the leave motion. The plaintiffs then summoned two Manulife employees under Rule 39.03 to provide what the plaintiffs believe would be relevant evidence with respect to Manulife Risk Management Practices for use during the leave motion.
[4] The defendants then brought a motion to quash the two summonses and the plaintiffs brought a cross motion to compel the defendants to file affidavits. Belobaba J. granted the motion to quash the summonses and dismiss the cross motion, holding that the two issues, (i) whether the defendants are required to serve and file affidavits on a s. 138.1 motion; and (ii) the availability of Rule 39.03 summonses in these circumstances have been fully adjudicated in this Court, referring in particular to Lax J.’s decision in Ainslie v. CV Technologies Inc. (2008), 2008 63217 (ON SC), 93 O.R. (3d) 200 (SCJ) and to a number of written recent cases which have subsequently accepted and applied her analysis, for example, Dobbie v. Arctic Glacier Income Fund et al., 2011 ONSC 25 and Sharma v. Timminco Ltd., 2010 ONSC 790.
[5] While the applicants argue that the circumstances of this case (where MFC has served a Request to Admit) justify a departure from cases such as Ainslie, the heart of their submissions rest on the underlying argument that Ainslie and the decisions which followed and applied it, were wrong. All of these arguments of law, principle and present circumstances were before Belobaba J. and he was alive to them.
[6] Having reviewed the materials filed and heard the able submissions of counsel, I am unable to conclude that the applicants have shown any reason to doubt the correctness of the decision. The jurisprudence, particularly as it has developed recently overwhelmingly supports the motion judge’s interpretation of s. 138.8 that it does not require the defendants to deliver affidavits or to be subjected to cross examination when they do not intend to lead evidence in response to the leave motion.
[7] The correctness of this decision is not open to serious debate and I further note that it cannot be said that there are conflicting decisions on the points, notwithstanding the obiter comments of van Rensburg J. in Silver v. Imax Corp. discussed by Belobaba J. and notwithstanding the fact that leave to appeal was granted in Ainslie.
[8] The application for leave to appeal is therefore dismissed.
COSTS
[9] Costs to the individual defendants in the amount of $2,500 and to MFC in the amount of $5,000.
HARVISON YOUNG J.
Date of Reasons for Judgment: January 14, 2013
Date of Release: January 16, 2013
CITATION: Dugal, Murphy v. Manulife Financial Corporation, 2013 ONSC 327
DIVISIONAL COURT FILE NO.: 9/13
DATE: 20130114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARVISON YOUNG J.
BETWEEN:
MARK DUGAL, AARON MURPHY, HARLEN BOMBERRY, JOHN O’MALLEY, GAETAN SIGUOIN, ARMAND CHARBONNEAU, PAUL MITCHELL, STEVEN MOFFATT, JOHN VASCONCELOS AND DAVID THOMPSTONE AS TRUSTEES OF THE IRONWORKERS ONTARIO PENSION FUND AND LEONARD SCHWARTZ
Appellants
(Plaintiffs)
– and –
MANULIFE FINANCIAL CORPORATION, DOMINIC D’ALESSANDRO, GAIL C.A. COOK-BENNETT, ARTHUR R. SAWCHUK AND PETER RUBENOVITCH
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: January 14, 2013
Date of Release: January 16, 2013