Sakie Tambakos

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.

Two competing groups of plaintiffs brought carriage and stay motions regarding proposed class actions against Zimmer for allegedly defective hip implants.

The court considered the problematic of multiple class actions across Canada, including the differences between opt-in and opt-out regimes.

The court granted carriage to the McSherry action, which was coordinated with a certified British Columbia class action, and stayed the competing Mets, D'Anna, and Ducharme actions, finding this to be in the best interests of the class members.

The plaintiffs sought leave under s. 138.3 of the Securities Act and certification under the Class Proceedings Act to pursue a class action against CIBC and its senior officers for alleged secondary market misrepresentations concerning CIBC's exposure to the U.S. residential mortgage market.

The court found that the plaintiffs met the test for leave and certification for the statutory claim.

However, applying the Court of Appeal's recent decision in Sharma v. Timminco Limited, the court held that the statutory claim was time-barred because leave was not obtained within the three-year limitation period under s. 138.14 of the Securities Act.

Consequently, both motions were dismissed.

In a proposed securities class action alleging secondary market misrepresentation by a publicly traded company and several of its officers and directors, the plaintiff brought a motion for substituted service of pleadings on two individual defendants who had not been personally served.

One defendant’s whereabouts were uncertain in Québec and the other, a Canadian citizen ordinarily resident in Québec, was incarcerated in Switzerland while criminal proceedings were ongoing.

The court considered Rules 16.04 and 17.05 of the Rules of Civil Procedure and the interaction with the Hague Convention on service abroad.

It held that the rule prohibiting substituted service where Hague Convention service is required did not apply because the defendant’s ordinary residence and connection to Canada justified service under the general rule.

The court concluded that the proposed methods of service through counsel were reasonably likely to bring the proceedings to the defendants’ attention.

Following approval of a class action settlement fund of $2.25 million for approximately 4,000 class members alleging illness from a resort norovirus outbreak, class counsel sought approval of an additional fee of $395,500 beyond an initial $600,000 fee.

The defendant opposed the motion, arguing the low take‑up rate—only 352 claims totalling approximately $333,000—made the total counsel fee disproportionate and unfair.

The court held that the value of a settlement for purposes of counsel fees may properly be measured by the total funds made available to the class rather than the amount actually claimed.

Considering the litigation risks undertaken, the benefits made available to class members, and policy reasons supporting incentives for class counsel, the court concluded the fee request was fair and reasonable.

The additional counsel fee was approved.