Sarah Jean Fiddes

In this class action damages trial arising from negligent facilitation of frequent trading in retail mutual funds, the court held that dilution caused by time zone arbitrage should be quantified using the Next Day NAV method rather than the profits method.

The court rejected the argument that prior OSC settlements conclusively compensated investors, found that objective trading characteristics and circumstantial evidence were sufficient to identify time zone arbitrage, and declined to require direct evidence of each trader’s subjective motivation.

Additional timer accounts were included for one defendant outright and for the other subject to specified filters, and the class definition was amended accordingly to exclude those market timers from recovery.

The court awarded principal damages of $60.48 million against one remaining defendant, plus further amounts for qualifying additional accounts, and $37,900,659.63 against the other, with simple prejudgment interest at 2.8% from commencement of the action.

Two class action proceedings—one against TELUS Communications Company and related entities, and one against Bell Mobility Inc.—were brought by plaintiffs alleging that the defendants engaged in similar practices of rounding up seconds to minutes on cell phone bills.

The defendants moved to consolidate the two actions for trial or summary judgment.

The court granted the motion to hear the two summary judgment motions consecutively in a single three-week block of hearing time, finding that the common issues were identical and that separate proceedings would create an unnecessary multiplicity of litigation and risk inconsistent findings.

However, the court determined that the case management judge would not preside over the summary judgment motions, as the principles underlying Rules 37.15(1) and 77.06(2)—which prohibit a case management judge from presiding at trial without consent—apply equally to summary judgment motions.

This costs endorsement follows the Court of Appeal for Ontario's decision to allow the respondent’s motion to quash the appeal.

The court reviewed written submissions on costs and ordered the appellants to pay the respondent $8,088.54 in partial indemnity costs.

The appellants sought leave to appeal a Superior Court decision that dismissed their motion for leave to appeal an arbitrator's award.

The respondent moved to quash the appellants' motion, arguing that no appeal lies from a refusal to grant leave to appeal an arbitral award when decided on the merits.

The Court of Appeal agreed, finding that the application judge did not mistakenly decline jurisdiction but rather determined the leave application on its merits.

Consequently, the Court of Appeal allowed the respondent's motion and quashed the appellants' motion for leave to appeal.

This costs endorsement addresses the Plaintiff's entitlement to costs following an unsuccessful motion by the Defendants to amend the certification of a class action.

The court awards the Plaintiff $150,000 in costs, finding the Defendants' objections unpersuasive, particularly in the absence of their own Bill of Costs for comparison.

The court commends Plaintiff's counsel, especially Ms. Nayerahmadi, for effective advocacy.

The court dismissed TELUS’s motion to amend the certification order in a class action regarding alleged systematic overbilling of mobile phone customers.

TELUS sought to decertify aggregate damages as a common issue and to require individual inquiries into class membership, arguing that business and consumer customers could not be reliably distinguished.

The court found that TELUS’s arguments and evidence were not new and had already been addressed at certification.

The court reaffirmed that TELUS’s internal records and account types provide a sufficiently reliable basis for distinguishing between business and consumer customers, and that any residual issues can be managed administratively after the common issues trial.

This decision resolves a carriage motion between three proposed class actions seeking damages for investors in The Toronto-Dominion Bank, arising from alleged misrepresentations and failures to disclose anti-money laundering (AML) deficiencies.

The court concludes that the Parkin action is best suited to advance the class members’ claims efficiently and cost-effectively, considering the statutory criteria under the Class Proceedings Act, 1992.

The decision addresses the impact of late registration of a class proceeding, the legal framework for carriage motions, the comparative strengths and weaknesses of each action, and issues of funding and counsel experience.

The applicants, Steven Bulut and 1091369 Ontario Inc., sought leave to appeal an arbitral award granting Marko N. Bulut a 50% constructive trust interest in real property.

The court declined to grant leave, finding no error of law in the arbitrator’s application of the law of constructive trust, unjust enrichment, limitation periods, or issue estoppel/abuse of process.

The court also declined to recognize the award under s. 50 of the Arbitration Act at this time, as no application for such relief was before the court and certain matters remained outstanding before the arbitrator.

This motion concerned the approval of a proposed settlement and counsel fees in a national class action against pharmaceutical companies.

The class action alleged that the atypical antipsychotic medications ABILIFY and ABILIFY MAINTENA caused various compulsive behaviours due to inadequate warnings.

The court approved a $14.75 million settlement fund, which includes compensation for class members suffering psychological harm, residual catastrophic injury, and financial loss, as well as honoraria for representative plaintiffs and class counsel fees.

The court found the settlement to be fair and reasonable, falling within the 'zone of reasonableness' despite objections from some class members regarding compensation adequacy and counsel fees.

The moving parties, including Chartwell Retirement Residences, Sienna Senior Living Inc., Extendicare Inc., and Schlegel Villages Inc., brought four motions for leave to appeal the decision of Morgan J. dated March 7, 2024.

The Divisional Court dismissed the motions for leave to appeal without costs.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The plaintiffs successfully defended a motion by the defendant to amend the certified class definition.

The plaintiffs sought partial indemnity costs of $88,296.33.

The defendant argued the amount was too high and suggested $45,000 payable in the cause.

The court found the plaintiffs' costs request slightly excessive due to unwarranted allegations of abuse of process, which unnecessarily protracted the matter.

The court reduced the requested amount by approximately 20% and awarded the plaintiffs $65,000 in costs, payable within 30 days.

Following a successful motion to certify a class action regarding psychiatric treatment at the St. Thomas Psychiatric Hospital, the plaintiffs sought costs of $713,798.85 on a partial indemnity basis.

The Crown defendants opposed the quantum, arguing the fees were unreasonable and should be reduced by at least 50% or made payable in the cause.

The court rejected the defendants' arguments, noting they failed to provide their own bill of costs for comparison.

Applying the principles of reasonableness and the factors under Rule 57.01(1), the court fixed the plaintiffs' costs at $675,000 all-inclusive, payable forthwith.

The Defendant, Bell Mobility Inc., brought a motion to amend the certified class definition in a class action, seeking either to exclude business customers or to compel the addition of a new sub-class with a separate representative plaintiff.

The Defendant argued that business customers might be statute-barred or had distinct interests requiring separate representation.

The court dismissed the motion, finding that the limitation issue was not ripe for determination on a class-wide basis as it required individualized discoverability analysis.

The court also declined to create a new sub-class, emphasizing judicial economy and the principle against "litigation in installments" given the advanced stage of the proceedings.

The plaintiffs brought a motion to certify a class action against the Government of Ontario regarding the psychiatric treatment of patients detained in the PST Unit of the St. Thomas Psychiatric Hospital between 1976 and 1992.

The plaintiffs alleged that the 'PST Program' was an experimental, abusive therapeutic community that improperly delegated treatment and punishment decisions to 'patient-teachers', resulting in physical and psychological harm.

The court granted certification, finding that the pleadings disclosed causes of action for negligence, breach of fiduciary duty, vicarious liability, and breaches of sections 7, 12, and 15 of the Charter.

However, the court narrowed the common issues, certifying questions related to systemic negligence, fiduciary duty, vicarious liability, and limitation periods, while directing that Charter breaches, causation, and damages must be determined at individual issues trials.

The court concluded that a class proceeding was the preferable procedure to advance the claims of the highly marginalized class members.

In a class action seeking certification against the Crown and two psychiatrists (Defendant Doctors) regarding treatment in a psychiatric hospital program, the plaintiffs moved for a partial discontinuance of the action against the Defendant Doctors.

The court granted the discontinuance, finding it to be in the best interests of the putative Class Members.

The decision was based on the lack of additional recovery from the doctors, the streamlining of the claim, the doctors' later involvement in the program, and their agreement to provide de bene esse examinations to preserve evidence.

The court confirmed that the discontinuance was not for an improper purpose and did not prejudice the class members or the co-defendant Crown, as the doctors' evidence remained available.

The plaintiffs brought a class action against mutual fund managers for allowing certain investors to engage in frequent short-term trading (market timing/time zone arbitrage), which allegedly diluted the returns of long-term unitholders.

The court found that the defendants owed a duty of care to the funds and breached the standard of care by failing to prevent, and actively facilitating, frequent short-term trading contrary to their prospectuses.

However, the court dismissed the claim for breach of fiduciary duty, finding no bad faith or dishonesty.

The matter was directed to proceed to a damages trial.