Sarah P. Petersen

In a class action for secondary market misrepresentation, the court approved a $1.275 million settlement, the proposed distribution plan, class counsel's fees of $357,000 plus disbursements, and an honorarium of $15,000 for the representative plaintiff.

The settlement was deemed fair, reasonable, and in the best interests of the class, considering the high risks and complexities of the litigation and the limited recovery range due to a CCAA order.

The court emphasized the need for exceptional contribution to justify a representative plaintiff's honorarium, which was found to be present in this case.

The plaintiff, Alex M. Bodnarchuk, brought a consent motion to certify a class action for settlement purposes and to obtain leave to proceed with a secondary market misrepresentation claim under the Ontario Securities Act against Guestlogix Inc., Brett Proud, and Patrick Leung.

The action alleged misrepresentations and omissions regarding credit facilities and financial covenants.

The parties reached a settlement of $1,275,000.

The court granted leave, finding the action was brought in good faith and had a reasonable possibility of success for settlement purposes.

The court also certified the action as a class proceeding for settlement purposes, finding all criteria under the Class Proceedings Act, 1992 were met.

The order approved the settlement notices and procedures for opt-outs and objections, and set a date for the settlement approval hearing.

This costs endorsement addresses the plaintiffs' request for partial indemnity costs following their successful resistance of a motion brought by the defendants.

The court found the plaintiffs' claim for $50,130.33, inclusive of fees, disbursements, and HST, to be reasonable, considering the complexity and importance of the underlying motion.

The court rejected the defendants' arguments to deny costs, including those related to the conduct of the first motion judge and the plaintiffs' affidavit evidence, emphasizing that the defendants' motion was successfully resisted.

The defendants moved to set aside service ex juris, dismiss for want of jurisdiction, or stay the action on the basis of forum non conveniens in a franchise dispute.

The plaintiffs sought a declaration of valid rescission of Saab Dealer Sales and Service Agreements under the Arthur Wishart Act (Ontario) and Alberta Franchises Act, and damages for statutory misrepresentation or breach of contract.

The court found a real and substantial connection to Ontario because the defendant franchisor carried on active business in the province.

The court also determined that California was not a clearly more appropriate forum, considering factors such as the residence of plaintiffs, location of witnesses, governing law, and the avoidance of proving Ontario law in a foreign jurisdiction.

The motion was dismissed.

A voir dire was held to determine the admissibility of lay opinion evidence from a watershed enforcement officer regarding the freshness of topsoil observed at a property.

The officer opined that topsoil was "very fresh material" based on observations of construction equipment, lack of vegetation, and crisp bulldozer tracks.

The court applied the four-element test from Regina v. Graat to determine whether the lay opinion evidence was admissible.

The court found that all four elements were satisfied: the officer was in a better position than the trier of fact to form the conclusion; the conclusion was one that persons of ordinary experience could make when combined with the officer's experiential capacity; the officer had the necessary experiential capacity despite not being an expert; and the opinion was a compendious mode of stating complex facts.

The opinion was admitted into evidence.

The plaintiff brought a libel action against a municipal councillor arising from statements made to a newspaper editorial board concerning an untendered municipal contract awarded to a corporation associated with the plaintiff.

The court held that although the statements could in law be capable of referring to the plaintiff, the reasonable reader would not conclude that they did so.

The defendant spoke only about the corporation and repeatedly stated he could not accuse anyone or pinpoint wrongdoing.

The court further found that the statements expressed suspicion of corruption without factual assertion and, when read in context, did not convey a defamatory meaning.

The plaintiff therefore failed to establish two essential elements of defamation: reference to the plaintiff and defamatory meaning.