SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-11-00434673

MOTION HEARD: 20140811

REASONS RELEASED: 201408 xx

SUPERIOR COURT OF JUSTICE – ONTARIO

RE:

Randall Masales, Pamela Masales
and Dorothy Blong
Plaintiffs

• and -

Henry Cole, Macquarie Private Wealth Inc.
and RBC Dominion Securities
Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Clarke Tedesco Fax: 416.217.0110
for defendant Macquarie (moving party)

Tim Hudek Fax: 416.637. 3243
for plaintiffs

BEFORE: MASTER D. E. SHORT

HEARD: August 11, 2014

Reasons for Decision

I. Overview

[1] The plaintiffs were stock brokerage clients of the defendant Henry Cole and Macquarie’s predecessor companies while Cole was employed by Macquarie’s predecessor companies, between September 2001 and October 2005 (“Relevant Time”). On September 9, 2011 the plaintiff brought an action against Macquarie alleging that they suffered investment losses arising out of Cole’s negligent management of their accounts during the Relevant Time.

[2] On February 7, 2013 Macquarie brought a motion for summary judgment seeking to dismiss the claim on the grounds that:

a) it was commenced outside of the limitation period set by the Limitations Act, 2002; and

b) the plaintiffs did not suffer damages.

[3] The summary judgment motion was originally scheduled to be heard October 10, 2013 but was adjourned on consent as a result of the plaintiffs’ delivery of an unsworn responding affidavit on or about September 9, 2013.

[4] Apparently the plaintiffs sought to deliver a supplementary affidavit of Randall Masales which attached a “hypothetical” analysis analyses prepared by David Hilton, the plaintiffs investment advisor, setting out what, it was alleged, should have happened to the plaintiffs’ accounts “if they had been properly managed and invested”.

[5] Counsel for Macquarie objected to the proposed supplementary affidavit on the basis that:

a) the affidavit contained impermissible opinion evidence and was not prepared in accordance with rule 53 of the Rules of Civil Procedure;

b) Mr. Hilton could not qualify as an expert, both due both to his lack of expertise and lack of independence; and

c) the report constituted impermissible hearsay evidence.

[6] Apparently that proposed affidavit was subsequently “withdrawn”. On March 28, 2014 plaintiffs delivered a further form of supplementary affidavit of Randall Masales. It is that affidavit that forms the subject matter of this motion brought by the defendant for an order striking out that 2nd affidavit.

II. Particulars of Motion

[7] The voluminous grounds asserted in support of the motion include the following:

“(i) The 2nd Affidavit, not in the nature of reply evidence, was delivered some seven months after Mr. Masales' original unsworn response to the evidence filed by Macquarie in support of its summary judgment motion, and after Macquarie' s reply evidence. The 2nd Affidavit purports to be a response to evidence served by Macquarie in February 2013;

(j) The 2nd Affidavit contains a "hypothetical" analysis of what the plaintiffs' portfolio "should have" been invested in. The affidavit attempts to use this hypothetical analysis to show a scenario in which the plaintiffs could have suffered damages;

(k) The content of the hypothetical analysis is nearly identical to the one prepared by the plaintiffs' current investment advisor, which was withdrawn following Macquarie's request;

(l) The 2nd Affidavit is in the nature of expert opinion evidence is replete with:

(i) Mr. Masales' evidence on the existence of and content of standards of the investment industry;

(ii) Mr. Masales' conclusions and expressions of opinion in respect of what particular stocks and mutual funds his portfolio "should have" been invested in; and

(iii) Mr. Masales' conclusions as to what damages he suffered;

(m) Mr. Masales has no expertise in the area of retail securities standards or practices. He has [no] special knowledge or experience with respect to the selection of particular securities;

(n) As the plaintiff, Mr. Masales wholly lacks the independence required to provide opinion evidence;

(o) Mr. Masales' contemporary evidence on what he "should have" been invested in at the Relevant Time is wholly irrelevant to the issues in the summary judgment motion;

(p) The 2nd Affidavit is scandalous, frivolous or vexatious;

(q) The 2nd Affidavit contains evidence that is irrelevant to the issues in the summary judgment motion; ….

(r) The 2nd Affidavit will prejudice the fair hearing of the summary judgment motion;

(s) If the 2nd Affidavit is not struck prior to the hearing of the summary judgment motion, it will needlessly confuse the record on the summary judgment motion, as it will require further reply evidence from Macquarie, will require cross-examination by Macquarie, and will necessarily be the subject of legal argument on the merits of the motion….”

III. Procedural Anomalies

[8] Notwithstanding that this action was commenced over three years ago in that it took 18 months for a motion for summary judgment to be brought the parties have not yet negotiated let alone entered into a discovery plan.

[9] In particular the moving defendant has yet to deliver a sworn affidavit of documents. In fact no draft affidavit of documents seems to have been provided to the plaintiffs.

[10] Counsel for the plaintiffs submits that it is inappropriate to retain an expert to provide a report that would comply with all the requirements of the rules without having access to the defendants’ documents.

[11] The plaintiff does not wish to incur the costs of a separate report for this summary judgment motion.

[12] The moving defendant asserts that the plaintiffs have an obligation “to lead trump” on such a motion and that they are proposed alternative form of affidavit ought not to be accepted.

[13] What is the correct “proportional” approach in such circumstances?

IV. The Challenged Affidavit

[14] Mr. Masales sets out in some detail the basis upon which he is challenging the motion for summary judgment and outlines the basis upon which he now justifies is bringing an action seeking damages from the moving defendants:

[15] In order to give a sense of the nature of the evidence put forward I am reproducing a substantial extract from the initial paragraphs of the challenged affidavit.

[16] Those paragraphs read as follows:

3. In the affidavit of Dan Bowering, the Chief Compliance Officer for the moving party, he states that "The plaintiffs ... suffered no compensable damages while they were Macquarie's clients."

4. This statement is not true, my wife and I suffered significant financial damages while we were clients of Macquarie.

5. [sic] Additionally, the television in our house is almost always on CNBC where my wife and I watch television shows such as Jim Cramer's Mad Money and Squawk Box.

6. At one point on Mad Money, there was a segment called "Am I Diversified?" where viewers would call the show, describe their portfolios to Mr. Cramer who would in turn tell them whether or not their portfolios were properly diversified. After watching the program for a number of months, it got to the point where my wife and I could identify whether or not a portfolio was diversified before Mr. Cramer provided his opinion.

7. Finally, since I began investing with Edward Jones, I have been reading all of the publications I can find produced by them.

8. The information contained in this affidavit is knowledge that I have developed based on the above sources. Where a decision in this affidavit had to be made (such as selecting a particular stock or determining diversification), the decision was based on the best or most reasonable choice that I could determine from my knowledge and education.

9. The facts discussed in this affidavit are based on historical, reviewable evidence. As a result, there is little, if any hypothesis or opinion provided by me.

10. The only information I received directly from a third party is the amounts that particular stocks or mutual funds increased or decreased in value. While this information is publically available, it was easiest for me to obtain this information from my current investment advisor at Edward Jones as he has software that is specifically designed to provide this information.

B. Purpose of Affidavit

10. The primary purpose for this affidavit is to respond to the statement of Dan Bowering, the Chief Compliance Officer for the moving party, that "The plaintiffs ... suffered no compensable damages while they were Macquarie's clients."

11. This statement is not true, my wife and I suffered significant financial damages while we were clients of Macquarie.

12. In order to demonstrate these damages or at the very least demonstrate that the issue of damages is not simple enough to be decided on a summary judgment motion, I have created hypothetical portfolios to demonstrate the profits that could have been made in our accounts.

13. These are an intermediary step as I will also be delivering a report from a damages expert.

14. These hypothetical portfolios, which are attached as Appendices to this affidavit, are based on two types of investments:

(a) investments in the stock market demonstrating what would have happened to our accounts if appropriate stocks were selected by the Macquarie Predecessors (the "Stock Portfolios"); and

(b) investments in mutual funds demonstrating what would have happened to our accounts if appropriate mutual funds were selected by the Macquarie Predecessors (the "Mutual Fund Portfolios").

15. Each of these portfolios represent what investments should have been made for individuals in the position that my wife and I were in when we began investing with Henry Cole: two teachers considering retirement that had to live off of their investments after their retirement and were primarily interested in preserving their principal. I do not believe that the defendants in this case seriously dispute this or any of the other principles and facts I have applied to my calculations.

16. I believe these hypothetical portfolios represent what would have happened to our accounts if they were managed by a competent, client focused and honest advisor developing long term equity portfolios.

C. The Stock Portfolios

17. In order to create the Stock Portfolio, I needed to make sure I was selecting appropriate stocks and applying standard investing principles. To do this, I was required to apply a number of criteria to only select stocks that were appropriate for investors in my and my wife's circumstances.

i. Stock Selection Criteria

18. The first criterion I applied was only selecting stocks from companies located in Canada, the United States and Europe. My reason for limiting potentially selected stocks to companies headquartered in these countries is that they are the locations where accounting and reporting requirements are standardized. I learned this criterion from one of the Edward Jones publications I reviewed.

[17] He then goes on at some detail to outline the basis upon which he asserts that his portfolio was operated by Mr. Cole and his justification for the damages he is claiming in this action.

V. Not an Expert

[18] Counsel for the moving party takes me to a number of cases where the court has refused to accept tendered purported expert affidavit evidence.

[19] I am not satisfied that any of the cases require me to strike this affidavit.

[20] Great reliance was placed upon Lockridge v. Ontario (Director, Ministry of the Environment) 2012 CarswellOnt 7116, 2012 ONSC 2316, 68 C.E.L.R. (3d) 27. There Justice Harvison-Young sitting as a single judge of the Divisional Court was dealing with a number of preliminary motions to strike affidavit evidence on an application to seek judicial review of a decision made by the director of the Ministry of the environment under the Environmental Protection Act .

[21] At paragraph 47 of her reasons (some citations omitted) she observes:

“The respective positions of the parties reflected to principles which run through the jurisprudence on the subject. On one hand, courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits.

[22] Her Honour continues:

48. On the other hand, this court has recently endorsed the practice of resolving issues about the admissibility of affidavit evidence before a motions judge prior to the hearing before the divisional court panel. In Sierra Club [2011 ONSC 4086], the court stated, at paragraphs 7 to 8,

“[w]e are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario Attorney General, 2010 ONSC 4058 (Div. Ct.). If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.

To fail to define the appropriate record for the court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.”

[23] The circumstances of the application before me differ in that the Summary Judgment Motion is to be heard by a Judge of this court in the relatively near future. Nevertheless I find Justice Harvison-Young’s analysis helpful with respect to the appropriate approach to be taken with affidavit evidence. Her reasons continue:

49. In Chopik v. Mitsubishi Paper Mills Ltd. (2002).26 C.P.C. (5th) 104 (Ont. S.C.J.), Justice Shaughnessy struck out, on a preliminary motion, a number of paragraphs from two affidavits submitted in support of a motion for certification under the Class Proceedings Act, 1992, S.O. 1992, c. 6, on the basis that responding to the irrelevant evidence would amount to needlessly wasted resources:

Where it is clear in law that evidence is inadmissible, to leave the evidence on the record is embarrassing and prejudicial to the fair hearing of the motion or application. A party should not be put to the needless expenditure of time and resources in responding to evidence which can have no impact on the outcome of the proceeding. [at para. 26.]

50. These two principles, considered within the context of the present case, are by no means irreconcilable. Defining the record appropriately in advance of the hearing enhances the panel's ability to determine the merits, and is thus in the interests of justice. As I will discuss below, there is material contained within the affidavit material that is clearly inadmissible and should be struck. On the other hand, this court must take care not to usurp the role of the panel in determining the merits. In case of doubt concerning the admissibility of affidavit material filed, it should not be struck. [my emphasis]

[24] In the present case I am not satisfied that the affidavit under consideration “can have no impact on the outcome of the proceeding.”

VI. Lay or Expert Evidence?

[25] In the case before Justice Harvison-Young she was addressing evidence of third parties rather than a personal litigant. She did address as well, the nature of opinion evidence in that case:

104. To the extent that the content in this paragraph is understood to be opinion evidence relevant to establishing the state of pollution in the area, I would agree with the respondents that it is improper. The central point of this paragraph, however, relates to the psychological effects of pollution in general and uncertainty. It is not feasible to segregate out statements that should be excluded from those that are arguably admissible, and so it is appropriate that the paragraph should remain, and the respondents may argue about the issues of admissibility and weight before the panel

105. Not all expressions of opinion are inadmissible on the part of lay witnesses: see R. v. Graat, (1982) 1982 33 (SCC), 2 S.C.R. 819,31 C.R. (3d) 289 (S.C.C.), at p. 305; David M. Paciocco & Lee Stuesser, The Law of Evidence, 5th ed., (Toronto: Irwin Law, 2008).

106. In considering whether a lay opinion will be admitted, a judge will consider,

... whether the conclusion is one that people with ordinary experience are able to make. Persons of ordinary experience may be able to estimate the speed of a motor vehicle, for example, but not the speed of an airplane. A judge will also consider whether the particular witness has the "experiential capacity" to form the relevant opinion. A young child will not likely have the ordinary experience needed to comment even on the speed of a motor vehicle. [Paciocco & Stuesser, at p. 187.]

107 In my view, the affiants who reside in the area have the requisite experiential capacity to opine, for example, on matters like the apparent increase in air pollution when the wind is blowing from the refineries, subject, of course, to the rules of relevance. They do not have the requisite capacity to opine, for example, on the effects of particular contaminants on various health or environmental conditions. Such evidence may only be adduced through proper expert evidence. [my emphasis throughout]

[26] Justice Stinson considered the admissibility of lay evidence on matters to which experts might usually be expected to testify in his trial judgment in Conn (Litigation guardian of) v. Darcel 2013 ONSC 5080. The headnote in that case reads in part:

Action by the plaintiffs against the defendant cardiologist in negligence. The action related to the sudden death of Christopher Conn after he crossed the finish line of the Toronto half marathon. He was 36 years of age and left behind a wife and two young children. The defendant, Dr. Darcel, was Conn's cardiologist. Conn had a heart condition known as aortic stenosis. While Conn's condition appeared to be asymptomatic, Dr. Darcel still advised Conn against engaging in any strenuous activity at their visits. Conn was supposed to have been seeing Dr. Darcel every six months, but he often missed visits. Of critical importance to the case was Conn's last visit to Dr. Darcel before the half marathon and the advice provided by Dr. Darcel at that time regarding how much exercise Conn could do safely. The plaintiffs asserted that Dr. Darcel was negligent and failed to meet the standard of care in his treatment of Conn in that he did not provide him with advice on the appropriate safe level of exercise in the face of his severe aortic stenosis. Several evidentiary issues arose at trial, including the admissibility of hearsay evidence regarding what Conn had told his wife and sister-in-law about the advice Dr. Darcel had provided, the admissibility of the evidence of Conn's wife regarding what Conn would have done if he had been counselled against running the half marathon by Dr. Darcel, and the admissibility of the evidence of a defence expert concerning his observations of the tendency of adult patients diagnosed with congenital heart disease/defects to follow advice on limiting exercise.

HELD: Action dismissed. The Court found that the evidence of Conn's wife and sister-in-law regarding the advice provided to Conn from Dr. Darcel during that last visit was inadmissible hearsay. While it was necessary, it was not reliable. The evidence suggested that Conn tended to downplay the significance of his condition, which raised serious doubts as to whether his statements to his wife and sister-in-law had been made under circumstances of trustworthiness. The evidence of Conn's wife regarding what Conn would have done if advised against running the half marathon was also inadmissible, as it went beyond simply asking her about what she had already observed and asked her to speculate about future events….

[27] The reasons of Justice Stinson (with my emphasis added) read in part:

Analysis

79 As stated in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd ed. (Toronto: LexisNexis Canada Inc., 2009) at 771:

As a general rule, a witness may not give opinion evidence but may testify only to facts within his or her knowledge, observation or experience. ... A qualified expert witness, however, may provide the trier of fact with a 'ready-made inference' which the jury is unable to draw due to the technical nature of the subject matter.

80 The plaintiffs acknowledge this broad principle. They submit, however, relying on R. v. Graat, 1982 33 (SCC), [1982] S.C.J. No. 102, that it has been relaxed in relation to lay opinion evidence by the so-called "helpfulness rule". Under this rule, where the witness's "opinion" testimony is founded on his or her personal knowledge or perceptions, the trier of fact can admit the evidence and then assess the weight to be given to it.

81 The defendant submits that the evidence of Mrs. Conn on this point goes well beyond the permissible scope of opinion evidence, whether lay or expert. He relies on Adam v. Campbell, 1950 326 (SCC), [1950] S.C.J. No. 51, where the Supreme Court held that an automotive engineer could not give opinion evidence as to how a motorist would respond to a sudden brake failure, and the effect that this would have on reaction time. In that case the majority of the Court stated (at para. 34):

In my view the evidence quoted above was inadmissible on two grounds. The first is that neither witness had conducted any tests or laid any other foundation to indicate that he had any qualification to express an opinion on such a matter as the "reaction time" upon encountering an "unusual" as opposed to an "ordinary" traffic hazard. The second is stated in the following words in Phipson on Evidence, 8th ed., p. 385: "Neither experts nor ordinary witnesses may give their opinions upon matters of legal or moral obligation, or general human nature, or the manner in which other persons would probably act or be influenced." [Emphasis in original.]”

82 For present purposes, the question thus becomes whether the Graat extension of the rule regarding admissibility of non-expert opinion evidence has had the effect of overruling the limits placed on the kind of testimony that was ruled inadmissible in Adam v. Campbell. In my view, in relation to the admissibility of non-expert opinion evidence, Graat stands for the proposition that a fact witness may give opinion evidence based on facts which he or she has observed where the opinion is simply a convenient way for the witness to communicate those facts. I base this conclusion on the following excerpt from the Supreme Court decision (at p.14):

I accept the following passage from Cross as a good statement of the law as to the cases in which non-expert opinion is admissible.

When, in the words of an American judge, "the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated", a witness may state his opinion or impression. He was better equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury:

"Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe."

There is nothing in the nature of a closed list of cases in which non-expert opinion evidence is admissible. Typical instances are provided by questions concerning age, speed, weather, handwriting and identity in general [at p. 448].

Before this Court counsel for the appellant took the position that although opinion evidence by non-experts may be admissible where it is "necessary" the opinions of the police officers in this case were superfluous, irrelevant and inadmissible. I disagree. It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state. This is because it may be difficult for the witness to narrate his factual observations individually....

83 In my view, the evidence that the plaintiffs sought to adduce through Mrs. Conn was not merely a convenient way to summarize facts that she had already observed. Rather, based upon her past observations, she was asked to provide a speculative opinion about future events, a category of testimony that extends well beyond the principle established in Graat. That case merely confirms that a witness may, via a statement of his or her opinion or impression, convey the conclusion they reached based on past events they personally witnessed. It is something quite different for a witness to engage in theoretical prognostications, such as what might a particular person might have done in a hypothetical fact situation. Consistent with the decision in Adam v. Campbell, I hold that such evidence amounts to testimony about the manner in which another person would probably act, and is not admissible.

VII. The Plaintiffs’ Arguments

[28] I return now to extracts from the plaintiffs’ factum which I have found particularly helpful:

20. Further, for each individual belief in Mr. Masales affidavit, such as his criteria for selecting a particular stock or mutual fund, Mr. Masales provided his source of information.

21. If Macquarie has questions or concerns about the information or belief in the affidavit, it can cross-examine Mr. Masales to obtain additional information.

22. The affidavit should not be struck. The affidavit meets the criteria provided for under Rule 39 and the corresponding jurisprudence. At all points, the affidavit properly distinguishes between personal knowledge and facts based on information and belief. At no point does Mr. Masales fail to disclose the source of his information and further, his sources are attached as exhibits to the affidavit.

International Oil and Gas Technology Ltd. v. Cassels Brock & Blackwell LLP, 2013 ONSC 4751 at paras. 14 to 20

23. Additionally, the Plaintiffs are explicitly allowed to provide an affidavit for use on a motion for summary judgment that is made on information and belief and are required to provide specific facts showing there is a genuine issue for trial.

(B) THE AFFIDAVIT CONTAINS PERMISSIBLE EVIDENCE

26. In any event, the Affidavit contains permissible opinion evidence. Macquarie argues at length about the role reserved for expert witnesses in proceedings - this is of no moment. Mr. Masales is not proffered as an expert witness in his affidavit. Mr. Masales is the Plaintiff in this action with personal experience in the matters at issue and personal knowledge of the investment industry.

27. Under the rules of evidence, Mr. Masales is entitled to offer opinion evidence as a lay witness. David Paciocco and Lee Stuesser in, The Law of Evidence note:

Lay witnesses may present their relevant observations in the form of opinions where

• They are in a better position that the trier of facts to form the conclusion;

• The conclusion is one that persons of ordinary experience are able to make;

• The witness although no expert. Has the experiential capacity to make the conclusions; and

• The opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.

Even for lay witnesses it is apparent that the general exclusionary rule disallowing opinion evidence is often not applied. A moment's reflection will reveal that the stark dichotomy between fact and opinion that is presupposed by the general rule is unrealistic. As Dickson J. said in Graat v. R: "Except for the sake of convenience there is little. if any, virtue in any distinction resting on the tenuous and frequently false antithesis between 'fact' and 'opinion'. The line between 'fact' and 'opinion' is not clear."

Field v. GlaxoSmithKline Inc., 2011 SKQB 16 at para. 29

28. According to John Sopinka, Alan W. Bryant, Sidney N. Lederman in The Law of Evidence in Canada, the law has moved away from the requirement of necessity in admitting lay opinion evidence to a standard of helpfulness and they state that ".the

modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness' perceptions."

John Sopinka et al, The Law of Evidence in Canada (Butterworths, Markham, Ont, XX) at pp. 774-775, …

30. The evidence is based on Mr. Masales' experience in the investment industry, he offers facts related to the procedural history of the litigation, and any and all conclusions are ones that a person of ordinary experience may make….

(C) THE PLAINTIFFS WILL BE PREJUDICED IF THE AFFIDAVIT IS STRUCK

32. The Plaintiffs will be gravely prejudiced if the Affidavit is struck. The Plaintiffs will have no option but to obtain an expert's report for the motion for summary judgement, which would be inefficient and unnecessarily increase costs at this point in the proceedings.

33. The Defendants have refused to produce their affidavit of documents. Without all available documents, any expert retained would not have sufficient information to properly assist the court in providing the whole picture of the question posed - the loss suffered by the Plaintiffs. Further, any expert with limited information from one of the parties would have difficulty fulfilling their duty of impartiality and independence to the court pursuant to Rule 4.1.

VIII. Conclusion

[29] The real issue here is whether or not the affidavit evidence of the plaintiff is being mischaracterized as expert evidence. In my view this is not expert evidence to which Rule 53 applies.

[30] The plaintiff is simply saying “this is how I calculate the loss on these assumptions with respect to these facts upon which I am relying in calculating my damages”.

[31] The weight to be given to that evidence is for the judge hearing the Summary Judgment motion or dealing with the matter at trial.

[32] The plaintiff is providing the defendants with his justification for why he feels that he is entitled to damages being sought in this action. If his underlying information is proven to be inaccurate by the defendants, then the plaintiff runs the genuine risk of simply losing his case.

[33] Millions of investors rely on stock price information that is available to them either online or in the print media. If the plaintiff’s claim was simply “I placed an order to buy a particular stock at the market price on the first day of the month and the broker failed to follow those instructions. Now the stock rose in price between the date when I gave the instruction and the date I learned of the failure to purchase the stock.” Would anyone seriously dispute that the basic loss suffered by client was the difference between the stock price on those two dates. This would not require an expert opinion. Practically, I see no difference between that situation and the case before me with respect to the method of calculation by the plaintiff of his losses. Obviously there are a number of hurdles to be passed to get to that point in the case, but that is not the issue before me.

[34] I am therefore dismissing the defendant Macquarie’s motion to strike the affidavit with costs.

X. Costs

[35] The moving defendant sought $7584.17 for partial indemnity costs if they were successful. In contrast, the plaintiff’s counsel sought $1485. Clearly this is not an amount which the defendants could effectively dispute. I am therefore awarding $1485 plus HST payable to the plaintiffs within 45 days from the release of this decision.

Released: December 13, 2014,

Master D. E. Short

DS/ R.74