Peter R. Jervis

The moving party brought a motion to review a single judge's decision dismissing his motion for an extension of time to file a Notice of Appeal.

The moving party argued the judge placed undue emphasis on his troubling explanation for the delay and erred in finding no merit in the proposed appeal.

The Court of Appeal dismissed the motion, finding no palpable and overriding error of fact and agreeing that the correct legal test was applied.

Two consortia of law firms appealed a carriage dispute over a multi-billion dollar securities class action against Barrick Gold Corporation.

The motion judge awarded carriage to the Rochon consortium, preferring their broader claims and more extensive preparation over the Koskie consortium's streamlined approach.

The Court of Appeal dismissed the appeal, finding no error in principle in the motion judge's application of the Vitapharm factors.

The Court affirmed that the ultimate question on a carriage motion is which action is more likely to advance the interests of the class, and the motion judge's exercise of discretion in balancing the relevant factors is entitled to considerable deference.

The Plaintiffs in a class action sought leave to examine second corporate representatives for AIC Limited and CI Mutual Funds Inc., and to examine non-party witnesses, pursuant to Rules 31.03 and 31.10 of the Rules of Civil Procedure.

The court dismissed the motions, finding that the Plaintiffs had not demonstrated that satisfactory answers could not be obtained from the initial representatives or that it would be unfair to proceed to trial without further examinations.

The court emphasized that Ontario's discovery rules generally envision a single examination per party, with the representative obliged to inform themselves and provide information based on knowledge, information, and belief, including through undertakings.

Two competing plaintiffs, Kowalyshyn and O'Brien, brought a carriage motion to determine who would represent the class in a securities misrepresentation class action against Valeant Pharmaceuticals and others.

The proposed class actions alleged that Valeant misrepresented its financial results and business practices, causing billions in losses to investors.

The court analyzed 16 carriage factors, finding most to be neutral or non-determinative.

However, the court found that the interrelationship of class actions in multiple jurisdictions strongly favoured Kowalyshyn.

O'Brien's action was closely tied to a parallel action in Quebec, and the court viewed her Ontario action as a surrogate attempt to stay Kowalyshyn's action indirectly.

The court granted carriage to Kowalyshyn and temporarily stayed O'Brien's action.

The plaintiffs, having successfully appealed the dismissal of their class action as time-barred and obtained certification and leave to proceed, sought costs on a partial indemnity basis for the certification and leave motions.

The defendants argued for a significant reduction, citing an "indulgence" (nunc pro tunc order), costs for required steps, limitation period issues, expert reports, divided success, and comparable cases.

The court rejected the defendants' arguments, emphasizing the extraordinary nature of the case, the public interest in access to justice for complex class actions, and the substantial success achieved by the plaintiffs.

The court awarded the plaintiffs the full amount of costs claimed, $2,679,277.82, payable by the Canadian Imperial Bank of Commerce.

The moving party sought an extension of time to file a notice of appeal from a summary judgment order that declared certain joint accounts passed by right of survivorship to the responding party.

The Court of Appeal dismissed the motion, finding that while the delay was short, the moving party's explanation for the delay was troubling given his recent experience as appellate counsel.

Furthermore, the proposed appeal lacked merit, as the motion judge made no palpable and overriding errors in finding overwhelming evidence that the testator intended the joint accounts to pass to the responding party.

Telecommunications companies sought leave to appeal certification orders permitting class proceedings concerning cellular phone billing practices.

The proposed class actions alleged that the defendants breached contracts, engaged in deceptive practices contrary to the Consumer Protection Act, 2002, and were unjustly enriched by rounding call durations up to the nearest minute under plans described as billed “per minute.” The moving parties argued that individual contractual contexts prevented the existence of a common issue and that certification was therefore inappropriate.

The court held that the meaning of the contractual phrase “per minute billing” was a common issue capable of resolution across the class, particularly given the standardized and adhesive nature of the consumer contracts.

Leave to appeal was refused and the certification orders were left undisturbed.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

In this certified class proceeding arising from alleged failures by mutual fund managers to prevent market timing, the plaintiffs moved to compel broader documentary production and to settle the discovery plan.

The court held that the requested comprehensive trading data and additional OSC production were directed to damages quantification, not to the certified common issues limited to duty and breach in negligence and fiduciary duty.

The court rejected the plaintiffs' reliance on an economics expert to establish legal relevance, holding that relevance to the common issues was a matter of domestic law for the court.

The motion was dismissed in full, and the court indicated that any remaining discovery plan details could be finalized at a case conference.

Two competing groups of plaintiffs, KMG and RGG, brought class actions against Barrick Gold Corporation for securities misrepresentations related to environmental violations at a Chilean mine.

The motion judge granted carriage to RGG, finding their broader claims and superior state of preparation were in the best interests of the class.

KMG appealed the carriage order.

The Divisional Court dismissed the appeal, holding that the motion judge articulated the correct test, did not err in law or principle, and committed no palpable and overriding factual errors in his assessment of the carriage factors.

The plaintiffs sought leave to appeal a costs decision where the motion judge ordered each party to bear their own costs of a certification motion due to the novelty of the issues under s. 31(1) of the Class Proceedings Act.

The plaintiffs argued that s. 31(1) should operate asymmetrically in favour of plaintiffs and not shield unsuccessful defendants from costs.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no serious reason to doubt the correctness of the motion judge's decision, as there is no rule requiring s. 31(1) to be applied asymmetrically.

The appellant appealed a Rule 21 motion decision that dismissed her proposed class action claims for constructive and common law fraud against the respondent trustees.

The motion judge found the claims were released by a CCAA settlement and were statute-barred.

The Court of Appeal upheld the decision, finding that the appellant had all material facts necessary to discover her claim when the Monitor's 39th report was issued in February 2010.

Because she issued her notice of action more than two years later in August 2012, the claim was statute-barred under the Limitations Act, 2002.

Following dismissal of a motion by four donor‑distributors seeking to opt back into a class proceeding after previously opting out, the court determined the appropriate costs award.

The responding party sought $28,893 on a partial indemnity basis, while the unsuccessful moving parties argued that costs should not exceed $2,500.

The court found that the motion to opt back in was misguided and largely predictable in outcome based on existing jurisprudence.

Considering the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $10,000 all‑inclusive payable by the unsuccessful moving parties.

The appellants appealed a trial judgment dismissing their claims for oppression and civil conspiracy against the respondents.

The appellants alleged the respondents unlawfully provided their share ownership information to a third party, leading to an injunction that froze their shares.

The Court of Appeal upheld the trial judge's findings that the respondents' conduct was not oppressive, there was no intent to injure to support a conspiracy claim, and the appellants suffered no damages because they had consented to the injunction.

The appeal was dismissed with costs.

Following a major appellate decision regarding the tolling of limitation periods in securities class actions, the successful parties in two of the appeals sought their costs.

The opposing parties argued for reduced costs on the basis of public interest, over-lawyering, and the fact that the court had overruled its own prior jurisprudence.

The Court of Appeal rejected these arguments, finding the claimed amounts to be fair and reasonable given the complexity and significance of the proceedings.

Costs of $151,250 and $100,000 were awarded to the respective successful parties on a partial indemnity scale.

Certain class members who had previously opted out of a certified class proceeding sought to opt back into the class action after a settlement was reached and a related third party claim was stayed.

They argued they were confused at the time of opting out and unaware that the third party claim against distributors might be stayed.

The court held that voluntary opt-outs may only be invalidated where there is evidence of misinformation, coercion, or other misconduct undermining the opt-out process.

No such evidence existed, and the explanation for opting out was neither credible nor legally relevant.

Emphasizing the importance of finality and integrity in the opt-out mechanism under the Class Proceedings Act, the motion to opt back into the class proceeding was dismissed with costs.

In a certified class proceeding, the defendants sought leave to appeal a case management order that refined the common issues and stayed their third party claims against numerous distributors pending the common issues trial.

The defendants argued the stay conflicted with principles governing third party claims and with provisions of the Rules of Civil Procedure, the Courts of Justice Act, and the Class Proceedings Act.

The court held that the broad discretionary powers under ss. 12 and 13 of the Class Proceedings Act permitted such case management orders to ensure the fair and expeditious determination of class proceedings.

The court found no reason to doubt the correctness of the stay order and rejected arguments that it conflicted with other statutory provisions or prior case law.

Leave to appeal was denied.

In a class proceeding relating to alleged misconduct involving a public corporation, the court addressed a correction to a prior costs decision.

The earlier reasons contained a factual error regarding the quantum of costs awarded to certain defendants on a motion to amend.

On consent of the parties, the court corrected the error and revised the amount payable.

The corrected award granted the defendants all‑inclusive costs for the amendments motion in a lower amount than originally stated.

Two competing proposed class actions alleged an international price‑fixing conspiracy relating to rechargeable lithium‑ion batteries and related consumer electronic products.

Counsel in each action sought carriage of the class proceeding and a stay of the other action under the Class Proceedings Act, 1992.

The court assessed factors including the scope of the claims, progress of the actions, proposed representative plaintiffs, class definitions, coordination with related proceedings, and the preparedness and strategic approach of counsel.

While both sets of counsel were experienced and many factors were neutral, the court found that the Shah action demonstrated a more proactive and coordinated approach, including earlier steps to refine the class definition, add defendants, obtain case management, and coordinate expert analysis.

The court concluded that awarding carriage to that action best advanced the interests of the proposed class.

Following an earlier decision dismissing a motion by the plaintiffs to amend their statement of claim and rejecting most of their requested changes to a discovery plan in a securities class action, the court addressed costs.

The defendants sought substantial partial indemnity costs for both the amendments motion and the discovery plan motion.

The court held that the amendments motion was a significant and high-stakes procedural dispute in complex class proceedings and that the defendants’ claimed costs were within the reasonable expectations of the losing party.

The court also found that the plaintiffs’ demands regarding the discovery plan were disproportionate and that the defendants were the successful party on that motion.

Costs were awarded to the defendants both for the amendments motion and, in any event of the cause, for the discovery plan motion.