Court File and Parties
COURT FILE NO.: 06-CV-307599CP DATE: 2020/12/16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS FISCHER, SHEILA SNYDER, LAWRENCE DYKUN, RAY SHUGAR, and WAYNE DZEOBA Plaintiffs – and – IG INVESTMENT MANAGEMENT LTD., CI MUTUAL FUNDS INC., FRANKLIN TEMPLETON INVESTMENTS CORP., AGF FUNDS INC. and AIC LIMITED Defendants
Counsel: Joel P. Rochon, Peter R. Jervis and Ron Podolny for the Plaintiffs David DiPaolo for the Defendant AIC Limited David Conklin and Tamryn Jacobson for CI Mutual Funds Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: December 10, 2020
PERELL, J.
File Direction/Order
[1] In this action, the Plaintiffs allege that the Defendants AIC Limited (“AIC”), which managed approximately 50 mutual funds, and CI Mutual Funds Inc., now known as CI Investments Inc., (“CI”), which managed approximately 100 mutual funds, breached a duty of care and a fiduciary duty owed Class Members, who were investors in the mutual funds, by permitting other investors to engage in “market timing.”
[2] The action, which was commenced in 2006, and which has already had a visit to the Supreme Court of Canada to yield a very influential class action decision [1] was by order dated July 25, 2014 certified as a class action under the Class Proceedings Act, 1992. [2]
[3] I am case managing the action, and on November 29, 2019, at a case conference, the parties advised me that they would be ready for a trial to be scheduled to begin in January, 2021. The parties requested the appointment of a trial judge. I suggested that the parties return in early 2020, by which time I would have an opportunity to inquire as to whether a judge might be available to assist them in preparing for and scheduling the trial.
[4] On April 6, 2020, in the midst of the pandemic, there was another case conference, and I advised the parties that it was not possible to have a trial judge assigned or to have a date fixed for the trial. I invited the parties to contact me again in the future.
[5] The parties continued to work towards being ready for a trial in early 2021, and by correspondence to me in June and again in November 2020, they repeated their inquiry about whether a trial judge could be appointed.
[6] In the correspondence, the Plaintiffs reported that they had delivered all of their expert reports (five experts in total) by September 2019 and that the responding expert reports of the Defendants were anticipated to be received later in the fall of 2020, in anticipation of a mediation with the Honourable Robert Sharpe scheduled for January 14 and 15, 2021.
[7] In these circumstances, I scheduled another case management conference, and before the conference, I inquired of Justices Myers and Darla Wilson, who are the Civil Team Leaders in Toronto, about the possibility of fixing a date and assigning a judge for the trial if the mediation failed.
[8] Justice Wilson, who manages long trials, was kind enough to tell me that she was prepared to fix a date for the trial and to assign a judge for a trial – provided that the parties were genuinely ready for a trial and that the length of the trial was not more than the two to three months duration that I had estimated.
[9] The case management conference went forward on December 10, 2020, and I was advised that there had been delays with the delivery of the Defendants’ expert reports and that the case would only be ready for trial (assuming the mediation failed) after April 2021. However, other trial commitments of the counsel on both sides actually meant that the trial could not be scheduled until 2022.
[10] I advised that parties that I would speak again to Justice Wilson about arranging a peremptory trial date for 2022 for a genuinely ready-for-trial action. I said that I was prepared as part of my case management responsibilities under the Class Proceedings Act, 1992 to oversee that the action was genuinely ready for trial. But I advised the parties there might be some procedural and evidentiary matters that might require interlocutory motions.
[11] I did speak to Justice Wilson, and she agreed to fix the date of Monday, January 10, 2022 peremptory for a maximum 40-day trial (to be completed no later than March 4, 2022) provided that I approved a “Trial Agenda” that would detail the witness to be called and that would temporally block out the activities of the trial. The Trial Agenda could be altered only by leave of the trial judge. A template for the Trial Agenda is annexed as Schedule “A”.
[12] I, therefore, make the following file direction:
a. This action is fixed for trial to commence on January 10, 2022 peremptory. b. The parties by case management conference and or by interlocutory motion are to have approved a Trial Agenda by no later than September 30, 2021, failing which the action will be struck off the trial list. c. The Trial Agenda may only be varied by Order or direction of the trial judge.
Perell, J. Released: December 16, 2020
Schedule “A” – Trial Agenda
COURT FILE NO.: 06-CV-307599CP
BETWEEN:
DENNIS FISCHER, SHEILA SNYDER, LAWRENCE DYKUN, RAY SHUGAR, and WAYNE DZEOBA Plaintiffs – and – IG INVESTMENT MANAGEMENT LTD., CI MUTUAL FUNDS INC., FRANKLIN TEMPLETON INVESTMENTS CORP., AGF FUNDS INC. and AIC LIMITED Defendants
Proceeding under the Class Proceedings Act, 1992
TRIAL AGENDA
| PARTY | COUNSEL | PHONE # & Ext. | EMAIL ADDRESS |
|---|---|---|---|
| Plaintiffs | |||
| Defendant # 1 CI Mutual Funds Inc. | |||
| Defendant #2 AIC Limited |
DATE FIXED FOR TRIAL: January 10, 2022 Peremptory DURATION OF TRIAL: 40 trial days, all inclusive REQUESTS TO ADMIT: Yes [ ] No [ ] AGREED EXHIBIT BRIEF: Yes [ ] No [ ]
[1] This Trial Agenda, which was approved by Order dated [*], may only be varied by order or direction of the trial judge.
[2] [ other terms ]
| Day # [ ] | **Activity *** | Summary of Nature and Purpose of Activity |
|---|---|---|
| 10:00 a.m. – 11:00 a.m. | ||
| 11:00 a.m. – 12:00 a.m. | ||
| 12:00 p.m. – 1:00 p.m. | ||
| 1:00 p.m. – 2:00 p.m. | ||
| 2:00 p.m. – 3:00 p.m. | ||
| 3:00 p.m. – 4:00 p.m. | ||
| 4:00 p.m. – 4:30 p.m. | Judge’s post-hearing reading time |
*** Activities include:**
- Closing Address
- Cross-Examination
- Examination in Chief
- Exclusion of Witness Order
- Motion
- Opening Address
- Reading Affidavit Evidence
- Reading-in Discovery Evidence
- Reading Expert’s Report
- Reading Witness Statement
- Reply Examination
- Voir Dire
- Written Argument
COURT FILE NO.: 06-CV-307599CP DATE: 2020/12/16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS FISCHER, SHEILA SNYDER, LAWRENCE DYKUN, RAY SHUGAR, and WAYNE DZEOBA Plaintiffs – and – IG INVESTMENT MANAGEMENT LTD., CI MUTUAL FUNDS INC., FRANKLIN TEMPLETON INVESTMENTS CORP., AGF FUNDS INC. and AIC LIMITED Defendants
FILE DIRECTION/ORDER
PERELL J. Released: December 16, 2020
Footnotes
[1] AIC Limited v Fischer, 2013 SCC 69. [2] S.O. 1992, c. 6