Paul Douglas Guy

This is a costs decision following the respondent's successful appeal of orders certifying an action as a class proceeding and granting leave to proceed under the Securities Act.

The respondent sought $120,000 in total costs ($20,000 for the Divisional Court leave to appeal motion and $50,000 for each of two appeals to the Court of Appeal).

The court awarded $70,000 in total costs ($20,000 for the leave to appeal and $50,000 for the appeals), finding that while there were technically two separate appeals, the issues and arguments were inextricably bound together in substance.

Two consolidated appeals concerning the interpretation of leave provisions in certification orders for class actions relating to trailing commissions paid to mutual fund managers.

The appellants (mutual fund managers) argued that new class actions commenced by different plaintiffs on behalf of different classes should have required leave under the certification orders because they related to the same subject matter.

The motion judge and Court of Appeal held that the leave requirement applied only to proceedings by the certified class members and parties to the original actions, not to new plaintiffs seeking to represent different classes.

The court dismissed the appeals, affirming that the leave provisions were limited in scope to the parties and class members bound by the original certification orders.

In this putative securities class action arising from alleged misconduct by the former CEO of Endeavour Mining, the plaintiffs moved for an order requiring defendants to deliver statements of defence and produce insurance information by November 21, 2025.

The defendants opposed both requests, arguing that no statement of defence is required before leave to proceed is granted under the Securities Act, and that insurance information disclosure is premature.

The court dismissed both aspects of the motion, finding that prior to OSA leave being granted, the statutory claim is a nullity and therefore no defence is required, and that insurance disclosure is premature absent settlement discussions or leave being granted.

This appeal concerns the certification of a class proceeding and the granting of leave to proceed with a secondary market misrepresentation claim under the Securities Act.

The respondent, a former shareholder of Akumin Inc., sought to certify a class action on behalf of purchasers of Akumin securities (common shares and secured notes) alleging misrepresentations in financial statements and seeking relief under both statutory provisions and common law negligence.

The appellants challenged both the leave order and the certification order, arguing that certain disclosures did not constitute "public corrections" that an efficient market requirement applied to secondary market claims, and that common law negligence claims should not be certified alongside statutory claims.

The Court of Appeal upheld the motion judge's decisions, clarifying the law on public corrections, rejecting an efficient market requirement, and confirming that common law claims can be certified alongside statutory claims.

On a motion under the Class Proceedings Act, 1992, the court approved the settlement of a class action alleging that a mutual fund manager and trustee improperly paid trailing commissions to discount brokers, thereby diminishing fund assets.

The court held the $8.5 million non-reversionary settlement was fair, reasonable, and in the best interests of the class, emphasizing the arms’-length negotiations, substantial litigation risks, limitation defences, expert-supported valuation, and efficient distribution method combining direct deposits for current unitholders with a simplified claims process for former unitholders.

The court also approved class counsel fees, taxes, disbursements, litigation funding payments, and a modest honorarium for the representative plaintiff.

The certification question itself was not decided on this motion.

The court dismissed the plaintiff’s motion to compel the discovery of Anna Shlimak, a former consultant to Cronos Group Inc., either as a corporate representative or as a non-party.

The court found that the plaintiff had not met the requirements under the Rules of Civil Procedure for examining a non-party or a second corporate representative, as there was no evidence that the information sought could not be obtained from the existing corporate representative, Michael Gorenstein, or that he was unwilling or unable to provide complete answers.

The court also noted that the plaintiff had voluntarily declined a further day of examination with Gorenstein.

The defendants’ offer to answer written interrogatories, including those requiring input from Shlimak, was found to be a reasonable alternative.

Costs of $10,000 were awarded to the defendants.

The defendants in several related class actions brought motions for summary judgment, arguing that the plaintiffs' actions were statute-barred by limitation periods or were a nullity for failing to obtain leave to commence.

The court adjourned the limitation period motions, finding they overlapped with common issues in earlier certified class actions.

The court dismissed the motions based on the leave requirement, interpreting the certification orders' leave provisions as applying only to competing class actions representing the same class members, not to actions by different classes arising from the same factual matrix.

The moving parties sought leave to appeal a decision granting the responding party leave to commence an action under s. 138.8 of the Securities Act.

The Divisional Court granted leave to appeal, identifying specific questions regarding whether the motions judge erred in holding that the Court of Appeal erred in a previous decision, and whether such an error rendered the decision unsafe.

Costs of the motion were fixed at $20,000, payable in the discretion of the appeal panel.

The plaintiff moved, with the defendant's consent, for an order certifying a class proceeding for settlement purposes under the Class Proceedings Act, 1992.

The action concerned the payment of trailing commissions to discount brokers from TD Mutual Funds, allegedly diminishing unit value due to breach of fiduciary duty.

The court found all certification criteria met, including disclosure of a cause of action, an identifiable class, common issues (breach of fiduciary duty), and that a class proceeding was the preferable procedure, especially in the context of a settlement.

The proposed representative plaintiff was deemed adequate, and the notice plan, long-form and short-form notices, and opt-out process were approved.

The action was certified for settlement purposes.

The plaintiff brought a motion for leave to commence a secondary market securities class action under Part XXIII.1 of the Securities Act against Akumin Inc., its directors and officers, and its auditor, Ernst & Young LLP, and for certification of the action under the Class Proceedings Act.

The claims arose from alleged misrepresentations in Akumin's financial statements that were later restated.

The court granted leave against the Akumin defendants, finding a reasonable possibility of success at trial regarding the alleged misrepresentations and public corrections.

However, the court denied leave against the auditor, EY, finding insufficient evidence that the auditor's statements were material or publicly corrected.

The court certified the action as a global class proceeding against the Akumin defendants, rejecting arguments to exclude American purchasers from the class.

The Ad Hoc Committee of Aleafia Health Inc. Debentureholders brought an urgent motion to lift the stay of proceedings under section 69.3(1) of the Bankruptcy and Insolvency Act.

The purpose was to allow them to issue a Statement of Claim against Aleafia and its directors/officers for negligent misrepresentation, specifically to pursue recovery under Aleafia's insurance policies before a limitation period expired.

The Trustee in Bankruptcy did not oppose the motion.

The court granted the motion, finding no prejudice to creditors or Aleafia, but made the order conditional on no opposition being received from the Office of the Superintendent of Bankruptcy (OSB) by a specified date, as the OSB had not been initially served.

The plaintiff in a putative class action sought leave to discontinue the action pursuant to s. 29 of the Class Proceedings Act, 1992.

The claim alleged that the defendants, including Emerge Canada Inc., violated working capital requirements and improperly pre-paid management fees.

The defendants were subsequently wound up, had no assets, and no insurance to satisfy a judgment.

The Class Proceedings Fund also denied funding for the action.

The court granted the motion for discontinuance, finding that the class would not be prejudiced given the lack of recovery prospects and the remaining limitation period for individual claims.

A notice plan for putative class members was approved.

Three law firms brought competing carriage motions to represent a class of shareholders of Canopy Growth Corporation in a securities misrepresentation class action.

The court evaluated the competing claims under s. 13.1(4) of the Class Proceedings Act, 1992.

The court granted carriage to the Dziedziejko action, finding that its longer class period, which included thousands of additional shareholders based on prior financial misrepresentations, better served the goals of access to justice and behaviour modification without sacrificing efficiency.

The competing Leonard and Twidale actions were stayed.

In this proposed class action, the plaintiffs sought leave to proceed under the Securities Act and certification as a class action under the Class Proceedings Act, 1992, against Kew Media Group Inc. for statutory and common law misrepresentation.

The alleged misrepresentations concerned Kew's financial health and compliance.

Kew consented to the orders.

The court granted leave to proceed and certification, defining the class and common issues, and appointed plaintiffs' counsel as class counsel.

The plaintiff sought certification of a proposed securities class action under the Ontario Securities Act, alleging misrepresentation by the defendants regarding the value of Cronos Group Inc. shares.

The defendants opposed certification and brought a forum non conveniens motion to stay claims of non-Canadian shareholders who purchased shares on the NASDAQ exchange, arguing these shareholders were already covered by a parallel U.S. class action.

The court granted certification for the proposed class, including U.S. shareholders, and dismissed the defendants' forum non conveniens motion, emphasizing Ontario's jurisdiction and the policy of access to justice.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

The plaintiffs in several 2018 class actions (the "2018 actions") brought a motion to temporarily stay overlapping 2022 class actions (the "2022 actions").

Both sets of actions alleged that defendants, as mutual fund trustees and managers, improperly paid trailing commissions.

The 2018 plaintiffs argued that losses were suffered only by those who purchased through discount brokers, while the 2022 plaintiffs contended that losses were incurred by all mutual fund holders, as fees were paid from the funds.

The court granted the temporary stay of the 2022 actions, finding substantial overlap and shared factual background, which would prevent unnecessary duplication of judicial and legal resources.

The court addressed potential prejudice to the 2022 plaintiffs by ordering the suspension of the relevant limitation period and by bifurcating the "separate series" and allocation issues for later litigation, ensuring that the 2022 plaintiffs' interests would be addressed when they diverged from the 2018 plaintiffs.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

Following the dismissal of the plaintiffs' appeal from the dismissal of their certification motions in two proposed class actions, the parties consensually resolved the issue of costs.

The Divisional Court ordered costs payable by the plaintiffs/appellants to the various defendants/respondents in the total amount of $92,500, inclusive of fees, disbursements, and HST.