Roger Horst

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The appellants appealed two awards from a sole arbitrator in a commercial arbitration regarding a failed real estate project.

The first award granted partial summary judgment dismissing claims related to loan advances as time-barred.

The second award increased the amount of security for costs.

The Superior Court held that the standard of review for commercial arbitrations remains reasonableness under Sattva, as Vavilov did not overrule it in this context.

The court found the arbitrator's decisions on both the limitation period and the security for costs were reasonable and correct, and dismissed the appeals.

The moving party defendants, an expert witness and his appraisal company, sought summary judgment to dismiss a professional negligence claim brought by their former clients, the plaintiffs.

The plaintiffs alleged the expert breached his duties during a prior trial, resulting in an unfavourable valuation of their shares.

The court granted summary judgment dismissing the negligence claim, holding that the absolute immunity afforded to witnesses extends to a party's own expert witness.

However, the court declined to grant summary judgment on the moving parties' counterclaim for unpaid invoices, finding that the plaintiffs' allegations of breach of contract and negligence raised triable issues that could serve as a defence to the claim for fees.

Investors brought negligence claims against their former financial advisor and related entities arising from failed hedge fund investments.

The defendants moved for summary judgment arguing the claims were statute‑barred under the Limitations Act, 2002.

The court held that the plaintiffs discovered or ought to have discovered their claim when they learned between 2005 and 2007 that the investment had failed and that it had been recommended by their advisor as low risk.

Knowledge of the precise cause of the fund’s collapse or later revelations about the advisor’s insurance status did not postpone discoverability.

The court also rejected allegations of fraudulent concealment.

The negligence claims relating to the investment were dismissed as statute‑barred.

The plaintiffs brought a motion for approval of a $10 million class action settlement and class counsel fees regarding an alleged investment leveraging scheme.

While the court found the settlement quantum and proposed counsel fees to be fair and reasonable, it refused to approve the settlement at this time due to a lack of procedural fairness.

Specifically, the settlement administrator failed to implement a transparent challenge process for class members to dispute their individual compensation amounts, as required by the settlement agreement.

The motion was adjourned to allow the parties to implement the required challenge process.

The court considered a motion seeking approval of a proposed $10 million class action settlement relating to investment advice involving leveraged borrowing to purchase mutual or segregated funds.

Although the court found the overall settlement amount to be fair and reasonable in light of litigation risks, potential appeals, and the complexity of individualized damages, it determined that the settlement administration process lacked procedural fairness.

Specifically, the settlement agreement required a “challenge” mechanism allowing class members to contest the calculation of their compensation, but the administrator had not implemented a meaningful challenge process.

Several objectors raised concerns about how their losses were calculated and were given no adequate opportunity to dispute the administrator’s determinations.

The court therefore declined to approve the settlement at that stage and adjourned the motion to allow implementation of a proper challenge process.

The Crown defendants brought a motion for summary judgment dismissing a personal injury action on the basis that the plaintiff failed to provide notice within ten days as required by s. 7(3) of the Proceedings Against the Crown Act.

The plaintiff was injured when a swing set on Crown-owned property collapsed.

Although written notice was sent outside the statutory ten‑day period, correspondence indicated that the Crown’s property manager attempted to inspect the swing the day after the incident.

The court drew an adverse inference from the Crown’s failure to provide affidavit evidence explaining what information it received or what investigation it undertook.

The court held that the Crown effectively received notice and had an opportunity to investigate shortly after the incident, satisfying the legislative purpose of the notice provision.

The plaintiffs brought a motion to certify a class action against financial advisors and their dealer, alleging they systemically recommended a 'Leveraging Scheme' to borrow money to invest in mutual funds without regard to suitability.

The court granted certification, finding that the pleadings disclosed a cause of action, the class was identifiable, and common issues existed regarding the duty of care, breach of duty, and punitive damages.

The court declined to certify damages as a common issue, finding it required individual assessment.

The court also held that a class proceeding was preferable to the Ombudsman for Banking and Investment Services (OBSI) process, which lacked binding remedial powers and adequate investor participation.

A motion to introduce fresh evidence of an MFDA settlement was dismissed.