Court File and Parties

COURT FILE NO.: CV-23-00701769-00CP DATE: 2023-11-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CRAIG DZIEDZIEJKO, Plaintiff – and – CANOPY GROWTH CORPORATION, DAVID KLEIN, JUDY HONG, and KPMG LLP, Defendants

AND RE: Court File No.: CV-23-00702281-00CP STEPHEN LEONARD, Plaintiff – and – CANOPY GROWTH CORPORATION, DAVID KLEIN, JUDY HONG, JUDY SCHMELING, DAVID LAZZARATO, THERESA YANOOFSKY, ROBERT HANSON, JAMES SABIA, GARTH HANKINSON, JOHN CELENZA, MICHAEL CAMMALLERI, and KPMG LLP, Defendants

AND RE: Court File No.: CV-23-00700135-00CP BRAD TWIDALE, Plaintiff – and – CANOPY GROWTH CORPORATION, DAVID KLEIN, JUDY HONG, JUDY A. SCHEMLING, ROBERT L. HANSON, DAVID LAZZARATO, JAMES A. SABIA, THERESA YANOFSKY AND GARTH HANKINSON, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Eli Karp and Hadi Davarinia, for the Plaintiff, Craig Dziedziejko Daniel Bach and Garett Hunter, for the Plaintiff, Stephen Leonard Paul Guy, Serge Kalloghlian, and Garth Myers, for the Plaintiff, Brad Twidale Robert Carson, for the Defendants, Canopy Growth Corporation, David Klein, and Judy Hong Jeffrey Haylock, for the Defendant, Michael Cammalleri Walter Stasyshyn, for the Defendant, John Celenza

HEARD: November 3, 2023

CARRIAGE MOTION

I. The carriage motion

[1] In this motion, three law firms are vying for the right to represent a class of shareholders of the Defendant, Canopy Growth Corporation (“Canopy”).

[2] Each of the firms has started a proposed class action: Siskinds LLP for the representative Plaintiff in the Leonard action (Court File No.: CV-23-00702281-00CP), Kalloghlian Myers LLP for the representative Plaintiff in the Twidale action (Court File No.: CV-23-00700135-00CP), and KND Complex Litigation for the representative Plaintiff in the Dziedziejko action (Court File No. CV-23-00701769-00CP).

[3] These law firms are all experienced in investors’ rights litigation and class actions. This is a complex and rarified field of practice, and the three competing firms are among the best and most specialized in the country; any of them will doubtless do a highly competent job with the case. But that is not the issue.

[4] In accordance with s. 13.1(4) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”), this carriage motion asks which of those actions will best advance the claims of the class members in an efficient and cost-effective manner. That exercise entails looking at the ways in which the three competing claims are structured, the theory of each case, the causes of action, the named defendants, the class definitions and periods, etc. While at this stage the Court does not have to fully assess the merits of any of the claims, it must examine their relative strengths, weaknesses, efficiencies, and likelihood of success: Blackford-Hall v. Simply Group, 2021 ONSC 8502, at para. 4.

II. The competing claims

[5] On May 10, 2023 and June 22, 2023, Canopy disclosed that it had materially overstated the revenue, revenue growth, profitability and goodwill associated with its subsidiary BioSteel Nutrition Inc. (“BioSteel”). It further revealed that it had deficient internal controls over its financial reporting (“ICFR”) and faulty, nearly non-functioning disclosure controls and proceedings (“DC&P”).

[6] At the same time, Canopy further disclosed that the poor ICFR and DC&P had led to BioSteel’s revenue being substantially overstated. Further, Canopy revealed that as a result of the inflated revenue, it had overpaid BioSteel’s minority shareholders – some of whom were the founders and management of the subsidiary – and that it had terminated certain of BioSteel’s management personnel as a result of these errors.

[7] It is fair to say that all three of the actions in issue here have a good prospect of success, in particular with respect to the secondary market claims they put forward. Those claims under Part XXIII.1 of the Ontario Securities Act, R.S.O. 1990, c. S.5 (“OSA”) are supported by the fact that Canopy has admitted the accounting errors in issuing its corrections, and that Canopy’s CEO – the Defendant, David Klein (“Klein”) – its CFO – the Defendant, Judy Hong (“Hong”) – and its auditor – the Defendant, KPMG LLP (“KPMG”) – have all conceded that there were material misstatements in Canopy’s financial statements.

[8] Those Defendants have also admitted that Canopy had weak and ineffective ICFR and DC&P, and that KPMG had issued unqualified audits of Canopy’s annual financial statements. While these admissions are with reference to accounting standards and are not admissions of legal liability, they go a long way toward clearing the path for the Plaintiffs’ claims.

[9] The Twidale action pleads a class period of May 31, 2022 to June 22, 2023 and the Leonard action pleads a class period of May 27, 2022 to June 22, 2023. These dates correspond with the corrective disclosure issued by Canopy in June 2023 in relation to its financial statements issued on May 31, 2022. The Leonard action also covered shareholders who purchased shares three days earlier than the release of the financial statements.

[10] The small difference between the Leonard and the Twidale class periods is based on the fact that on May 27, 2022, Canopy issued a press release which contained advanced notice of the misstated financials. Counsel for Leonard submits that the shareholders who purchased on the strength of the press release suffered in the same way as the shareholders who purchased on the strength of the financial statements. The Leonard claim asserts that the investors who acquired shares of Canopy between May 27th and May 31st are to be included in the proposed class.

[11] Counsel for Twidale have opted to leave those three days out of the class period. They submit that the press release, unlike the financial statements, is not a “core document” as defined in s. 138.1 of the OSA, and that, as a consequence, s. 138.4(1) imposes a greater burden of proof – actual knowledge of the misrepresentation or “gross misconduct – making the claim a far riskier one. In addition, Twidale’s counsel advises, and Leonard’s counsel concedes, that the number of shareholders in this three-day category is likely extremely small. It is Twidale’s counsel’s view that the extra burden of proving liability based on the press release is disproportionate to the amount of benefit that bringing in this small group of class members might bring.

[12] The Dziedziejko action proposes a far longer class period than either of the other two actions. Similar to Leonard and Twidale, its class period ends with the correctives issued by Canopy on June 22, 2023. However, the Dziedziejko class period reaches back a year earlier, commencing on June 1, 2021. This extra year is based on similar misrepresentations with respect to BioSteel’s revenue that were contained in Canopy’s June 2021 financial statements. This extended class period would, in effect, enlarge the class membership by thousands of investors who purchased Canopy shares over the course of two full years.

[13] In the view of counsel for both Leonard and Twidale, the Dziedziejko class period is too large. They perceive it as a “drag” on the action, adding an extra burden on the Plaintiff that is inefficient to assume here. Counsel for Dziedziejko, on the other hand, sees the benefit of the extended class as far outweighing the burden. He submits that the proof of the prior year’s misrepresentation is already contained in the record of previous shareholder litigation against Canopy, and that harnessing that evidence will be a worthwhile endeavor for a large number of Dziedziejko’s proposed class members.

[14] Separate from the class periods, there are also some differences in the way the three claims have been constructed and the causes of action pleaded. For one thing, the Leonard and Twidale actions have both pleaded misrepresentation in the primary market along with common law negligent misrepresentation. Leonard has also added an allegation of fraud to the mix, making that pleading the most aggressive in tone of the three under consideration.

[15] The Dziedziejko action has left out the primary market and common law causes of action. Counsel for Dziedziejko argues that negligent misrepresentation is ill-considered under the circumstances, in that it will place on the class the difficult challenge of demonstrating reliance before liability can be established. Dziedziejko’s counsel further submits that the pleading of fraud in Leonard is unduly aggressive, amounting to what has in other carriage cases been called a “needless provocation that will just fuel the defendants’ fervour to defend”: Smith v. Sino-Forest Corporation, 2012 ONSC 24, at para. 311.

[16] Instead of common law claims, the Dziedziejko action advances an oppression remedy claim under the Canada Business Corporations Act, R.S.O. 1985, C-44. It is counsel’s view that the statutory oppression remedy will provide a relatively broad, flexible, and less onerous approach to the Defendants’ conduct than the common law causes of action advanced in the Leonard and Twidale claims.

[17] Each set of counsel naturally touts their own approach and downplays the others. They have each made submissions to the effect that the other two cases are missing important claims and opportunities for the class. They each further submit that the others have added unnecessarily difficult claims and burdens for the class.

[18] Whether one considers the primary market, common law, and oppression claims to be carry-on handbags or oversized luggage, they are all just baggage accompanying the real passenger: the secondary market claims under section 138.3 of the OSA. That is ground on which all three of these proposed class actions will likely rise or fall. A Ven diagram illustrating the overlap of claims between the three would show the oppression claim filling much of the space of the common law and primary market misrepresentation claims, and vice versa. In my view, the court would be drawing altogether too fine a line to stay any proceeding based on those nuanced differences.

[19] There are also small differences in the subject matter covered by the three actions, although these, too, do not amount to much. The Leonard claim covers warrants as well as shares, but the evidence appears to be ambiguous as to whether the warrants changed in price with the misrepresentation and correction; in any case, counsel advise that the number of warrants traded during the class period is relatively small. The Twidale claim covers call options, but these are not included in the OSA statutory claim. They are therefore subject to the onerous and disproportionately resource-consuming common law requirement that reliance be proved. For reasons of economy, the Dziedziejko claim has left these minor forms of investment out of its pleading.

[20] The lists of Defendants named in the competing actions also differ, although the most important players are named in all three actions: Canopy, KPMG, Klein, and Hong. The Leonard and Twidale actions have gone on to name other Canopy directors: Judy Schmeling, David Lazzarato, Theresa Yanoofsky, Robert Hanson, James Sabia, and Garth Hankinson. This will give the Plaintiffs increased opportunity for discovery, although it is not at all certain that anything fruitful will come of that extra effort. Increased opportunities for discovery can be spun by counsel as a positive feature of an action, but discovery of yet one more deponent is a waste of time and resources if nothing is actually discovered.

[21] Likewise, it is not certain – in fact, at this point it is somewhat doubtful – that naming these extra directors will add anything to the liability or damages calculus of the claims. In fact, at this stage it is unclear whether any cause of action can be sustained against the extra directors. On the state of the record before me, I do not fault counsel for having included them in the Leonard and Twidale claims, but I equally understand why counsel decided to leave them out of the Dzeidzeijko claim. There is always some chance that a benefit might be gained, and there is equally a chance that time and effort will be lost in pursuing those Defendants.

[22] One difference on which counsel have spent considerable time is that Leonard and Twidale, but not Dzeidzeijko, have named two former directors of BioSteel as Defendants: John Celenza (“Celenza”) and Michael Cammalleri (“Cammalleri”). Counsel for Leonard and Twidale identify those two individuals as the founders of BioSteel and, effectively, the source of the misrepresented financial information at the heart of this case.

[23] Counsel for Leonard submits that the absence of Celenza and Cammalleri would create an “empty chair” problem at trial. In other words, he explains, it will be too tempting for all other Defendants to deflect liability away from themselves by casting blame on the two missing individuals who are not there to respond. Counsel for Leonard and Twidale both point out that Cammalleri, in particular, would be a valuable Defendant as he is presumed to have deep pockets, having once been a professional hockey player in the NHL.

[24] Counsel for Dzeidzeijko, by contrast, sees the addition of Celenza and Cammalleri as superfluous to the claim. He argues that their liability is an open question since they were not part of the Canopy team that issued the misrepresentations. He also contends that, in any case, their absence will be helpful in scoring goals against the truly responsible Canopy parties. In his view, leaving Celenza and Cammalleri out of the claim will prevent the analysis from being diverted away from Canopy, KPMG, and the actual responsible Canopy officers.

[25] Dzeidzeijko’s counsel also argues that if Celenza and Cammalleri are so important to the narrative, they will likely be third partied into the case by the other Defendants. In that respect, they will be before the Court one way or another. He also submits, correctly, that there is no actual evidence of Cammalleri’s net worth, or location of his assets, or anything else that might make him a tempting person to have named as a Defendant.

[26] Counsel for Dzeidzeijko contends that for the sake of efficiency, it is preferable to leave out of the claim individuals against whom the claim is mostly a Hail Mary pass, and who were named in the other two cases primarily for their potential assets rather than for any legally exposed position. As Justice Perell explained in Simply Group, at para. 10, in a carriage motion a Court must consider “what is precisely necessary for access to justice for the class members in their particular circumstances and to discourage case theories or the parts of case theories that may be a waste of resources or that may be a drag on the proceeding [emphasis added].”

[27] The focus on precision rather than on the breadth of the claim is important here. A claim against Celenza and Cammalleri is understandable; but, at least at the present stage and on the present record, it is equally arguable that it does not precisely fit as a truly necessary ingredient of the case.

III. Efficiency

[28] In Longair v. Akumin Inc., 2022 ONSC 2571, at para. 8, the carriage test was put succinctly: “…s. 13.1 demands a case-by-case analysis of efficiency, productivity, and proportionality and the needs of Class Members, as distinct from the wants of class counsel.” The question of efficiency, which the statutory provision now emphasizes, is to be addressed from the vantage point of the class members, not from the vantage point of counsel.

[29] In oral argument, counsel for Twidale went out of his way to address the question of why the Twidale claim contains the shortest of the three class periods. In doing so, he asked, rhetorically, why a claim that is already among the largest securities claims in Ontario’s class action history, should take on even more class members and thereby make itself into an even more lengthy proceeding. Stated in this way, the argument seemed to pose a longer class period as foolhardy and, although he did not put it quite this way, somewhat greedy.

[30] The perspective expressed in the rhetorical question is, of course, one of efficiency. It speaks to a compact class, with a tightly constructed claim, leading to an expedited payoff. But, with respect, appealing as that might be to class counsel, it defines efficiency in a way that puts it at odds with other goals of class actions.

[31] A speedy recovery on behalf of a smaller, narrowly defined class, undoubtedly makes counsel’s own investment in the case a more efficient one. Much as a quicker in-and-out is always more desirable than protracted litigation, however, that is not exactly a description of what the CPA is all about. As Justice Perell observed in Kowalyshyn v. Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819, at para. 215: “Generally speaking, having regard to the goals of class actions to provide access to justice, behaviour modification, and judicial economy, more serious than an over-inclusive Class Membership, which can be pruned, is an under-inclusive definition.”

[32] Counsel interested in the global recovery may well be satisfied with the return on investment represented by a more narrowly defined class. But that calculation provides little consolation, and no efficiency at all, for investors otherwise left out. The streamlined actions encouraged by the factors to be taken account of under s. 13.1(4) are intended to foster access to justice, not to eliminate it for some claimants with credible claims in order to expedite it for a smaller and thus inevitably more manageable class of claimants.

[33] As indicated earlier, the most significant difference between the three actions in issue is the length of the class period. While the Leonard and Twidale actions begin the period in May 2022 (with a minor difference of three days between them), Dzeidzeijko begins the period on June 1, 2021.

[34] The earlier class period in Dzeidzeijko takes into account a number of financial misrepresentations made by Canopy that were the subject of a previous shareholder action: Mode v. Canopy Growth Corporation, Court File No. CV-20-00639855-00CL. That action harked back to a transaction in late 2019, in which Canopy acquired a majority stake in BioSteel. The selling shareholders included BioSteel co-founders, Celenza and Cammalleri. Canopy paid approximately $56 million plus an earn-out based on BioSteel’s 2019 revenue and certain years’ future revenue.

[35] A dispute arose in early 2020 with respect to the earn-out and $8 million of BioSteel revenue that was supposedly earned in a sale to two new customers. Canopy disputed the revenue, alleging, among other things, that it was booked in contravention of the company’s IFCR and DC&P. KPMG was retained to perform an audit of the disputed year’s revenue. It concluded that the revenue could not be recognized as it failed to meet IFCR standards.

[36] The Mode action was initiated by BioSteel’s selling shareholders, claiming that the disputed amount was wrongly excluded by KPMG’s audit, and that it should have been included in BioSteel’s 2019 revenue. The action eventually settled and was dismissed on consent in October 2022.

[37] Before the Mode action was dismissed, however, Canopy had pleaded in its own defense. In doing so, it identified the following financial misdeeds and misrepresentations engaged in by BioSteel and its directors (as summarized by counsel in Dzeidzeijko):

(a) the 2019 reported revenue of $22.74 million was ‘dramatically higher than Biosteel’s 2018 revenue of $15,156,343’;

(b) BioSteel’s 2019 revenue was ‘artificially inflated by transactions that could not legitimately result in actual 2019 revenue for BioSteel’;

(c) the sales were ‘paper sales’, ‘or speculative ventures with no likelihood or no real likelihood of resulting in any benefit to BioSteel or Canopy’;

(d) BioSteel’s management ‘had a strong incentive to increase BioSteel’s apparent revenues for the period ending on December 31, 2019. Such revenue, to the extent they brought BioSteel’s total revenues for 2019 above $16 million, would generate a corresponding 3.6-fold payment’ to BioSteel’s minority shareholders;

(e) the transactions were ‘undocumented, speculative, and unaccountable’; and

(f) the sales ‘were very large transactions with two new customers with no payment history, no formal contracts, [and] no indicia of collectability.’

[38] KPMG was also named as a defendant in the Mode claim. Prior to that case settling, it had also issued a pleading in its own defense. KPMG’s pleading in Mode alleged the following with respect to BioSteel’s accounting (as summarized by counsel in Dzeidzeijko):

(a) the disputed transactions met the criteria for potential ‘channel stuffing’, which is a form of overstating revenue when suppliers try to boost sales by inducing distributors to buy substantially more inventory than they can promptly resell;

(b) there was uncertainty as to whether one of the new customers (that had purportedly purchased product for international sale) was an external distributor that would meet the definition of a customer;

(c) BioSteel did not have practices and processes in place for establishing contracts of such magnitude and had never entered into contracts of $2 million or more;

(d) BioSteel was not able to provide strong evidence that such contractual obligations existed as of December 31, 2019;

(e) BioSteel did not have audit evidence to support credit worthiness at December 31, 2019, or to establish that sufficient steps were taken to assess the customers’ credit worthiness and therefore their ability (i.e. financial capacity) to pay the invoiced amount;

(f) the possibility of returns impacted the recognition of revenue, as KPMG was aware of cases in BioSteel’s early history where BioSteel allowed returns that were not required to be accepted; and

(g) there was a lack of strong evidence that control over the product supposedly sold had been transferred to the purchasers on December 31, 2019.

[39] Counsel for Dzeidzeijko contends that, from these pleadings in the Mode action alone, it is apparent that Canopy and KPMG knew a year before the start of the Leonard/Twidale class periods that BioSteel had deficient ICFR and DC&P. They were entirely aware that these deficiencies could allow it to “artificially inflate” its reported revenue. They also were aware that BioSteel’s management had in the past improperly inflated BioSteel’s revenue, that BioSteel’s extraordinary year-over-year revenue growth would therefore be suspect, and that the business-to-business and international sales recorded in 2019 were suspected of being overstated or even non-existent.

[40] In its 2022 financial report, Canopy engaged in practices similar to those in which it found BioSteel had engaged in 2019. That is, it again overstated BioSteel’s revenue, resulting in Canopy paying BioSteel’s minority shareholders more than they were entitled for on the earn-out related to the acquisition of their shares.

[41] This May 2022 overstatement, in turn, resulted in Canopy issuing two corrective disclosures advising that it was restating its financial figures for the year ended March 31, 2022 as well as the first three quarters of its fiscal 2023 year. These announcements also recognized Canopy’s material weaknesses in ICFR and ineffective DC&P. The corrective disclosure statements, in turn, spawned the investigations by all three law firms into the claims at issue here.

[42] In explaining the reasons for its June 1, 2021 commencement date for the class period, counsel for Dzeidzeijko states that the investigations revealed that, despite their representations of adherence to Canopy’s Code of Conduct, Board of Directors Mandate, Audit Committee Mandate, and its Corporate Governance, Compensation and Nominating Committee Mandate, Canopy had failed to take sufficient steps to remedy the BioSteel financial control deficiencies. As indicated above, there is, in fact, no disputing that Canopy and KPMG were aware of these deficiencies, since they had pleaded as much in Mode. Once counsel began digging into Canopy’s history and discovered the pleadings in the Mode action, they too came to understand that Canopy’s and KPMG’s failures in this respect were not isolated to the May 2022 financial reporting, but rather dated back to previous years.

[43] The Dzeidzeijko claim alleges that this inaction by Canopy, its two senior-most officers, and KPMG, violated the reasonable expectations of Canopy’s other shareholders and that it was oppressive and prejudicial to them. It also claims that the Defendants committed further actionable misrepresentations by only stating publicly for the first time in the June 2023 corrective disclosures that the BioSteel – and, therefore, Canopy – revenues had been overstated in previous years. For these reasons, the Dziedziejko Action encompasses a class period from June 1, 2021 (when Canopy’s 2021 Annual Report was released) until June 22, 2023 (when the second corrective disclosures were released).

[44] As indicated above, there are thousands of potential class members who invested in Canopy shares between the start of the Dzeidzeikjo class period in June 2021 and the start of the Leonard and Twidale class periods in May 2022. While s. 13.1(4)(b) of the CPA instructs me to consider “the relative likelihood of success in each proceeding, both on the motion for certification and as a class proceeding”, it does not ask for a full-blown adjudication of the claims on their merits. All the Court needs to do at this stage is to evaluate a likelihood of success based on the current record.

[45] In the Dzeidzeikjo case, that record includes the impugned financial reports, the corrective declarations, and the Mode pleadings. In total, these materials are themselves sufficient to predict a good chance of success for a class claim dating back to June 1, 2021.

[46] My granting carriage to either of the Leonard or the Twidale actions, and issuing a stay in the other two actions, will effectively mean that the 2021-2022 members of the proposed class in Dzeidzeikjo have no claim to pursue. Ironically, I will have made that ruling eliminating their claim without the Defendants having adduced any evidence or made any argument whatsoever. That kind of decision in a carriage motion was frowned upon prior to the recent amendments of the carriage rules reflected in s. 13.1(4): Rogers v. Aphria Inc., 2019 ONSC 3698, at para. 96. It seems to me that, all else being equal in the competing cases, it should still be frowned upon now.

[47] The direction in s. 13.1(4)(b) is to assess “the relative likelihood of success of each proceeding” – in other words, it is an exercise in comparing the claims to each other, and not weighing them as against the Defendants’ yet-to-be argued case. In the present circumstances, the three cases are more or less equal to each other. As already explained, one pleads fraud along with negligent misrepresentation in both the primary and secondary markets, another restricts itself to negligent misrepresentation and again includes both primary and secondary markets, and one adds an oppression claim instead of the common law claims. All three of them put front and centre the secondary market claim under Part XIII.1 of the OSA.

[48] On the basis of the claims themselves, it is not possible to make a definitive judgment as to which one has a better chance of success. The common law claims have their difficulties in terms of proving reliance, and the fraud claim is altogether difficult to prove. Likewise, the oppression claim has its weaknesses in that the kind of misrepresentation by management alleged here might or might not fit the court’s conception of shareholder oppression. The strongest case – the statutory claim of misrepresentation in the secondary market – is the same for all three actions.

[49] The real difference between the actions is, of course, the length of the class period. Since Dzeidzeikjo is the only one to include the May 2021 to June 2022 investors, it naturally has the relatively best chance of success for them. The other two actions leave out those potential class members altogether.

[50] Obviously, the implementation of s. 13.1 of the CPA does not call for a rule of ‘more is better’ in terms of class members. If it seemed as if the Dzeidzeikjo action gratuitously roped in a large number of shareholders for no reason but to pad its numbers, the analysis here would be very different. However, as reviewed above, the earlier starting date for the class period in Dzeidzeikjo is not pulled out of thin air; to the contrary, there appears to be ample evidence supporting it from the prior Mode litigation.

[51] In fact, counsel for Leonard and Twidale do not dispute the factual premise of Dzeidzeijko’s June 1, 2021 starting date. They just think it is a less convenient way to approach the case, and have concluded that it is more of an investment of time and resources with a lower return. Nevertheless, while it may not be quite as straightforward as the claims based on the 2022-2023 period – which, after all, were the subject of expressly corrective disclosure statements – the 2021-2022 claim is a very credible one that equally deserves to be pursued.

[52] In my view, a carriage motion is not the place for a court to dismiss what looks from the outset like a serious claim by thousands of shareholders. Giving carriage to the action that includes those shareholders rather than to one of the actions that excludes them is the only way that the claims of those shareholders will be advanced. It is also the way of bringing the efficiency goals of s. 13.1 of the CPA into line with the other important class action goals of access to justice and behaviour modification: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 SCR 534, at paras. 27-29.

IV. Disposition

[53] Carriage of this proposed class action is granted to the Dzeidzeikjo action.

[54] The Leonard and Twidale actions are stayed.

Date: November 10, 2023 Morgan J.