Court File and Parties
COURT FILE NO.: CV-18-00611743-00CP DATE: 20240725 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Ross AND: RBC Global Asset Management Inc. and RBC Investor Services Trust
BEFORE: J.T. Akbarali J.
COUNSEL: Michael Robb, Anthony O’Brien, and Garrett Hunter for the plaintiff Andrea Laing and Ryan Morris, for the defendant
HEARD: In writing
Endorsement
Overview
1On this motion, the plaintiff seeks to certify this proceeding as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). The defendant does not oppose the order.
Brief Background
2In this action, the representative plaintiff advances claims relating to the payment of trailing commissions to discount brokers out of the assets of the defendants’ mutual funds. The plaintiff alleges that the trailing commissions are excessive, inflated and/or unearned, and were paid by the defendants in breach of their trust, fiduciary and contractual duties to the class members who held those mutual funds, including the plaintiff.
3This case is one of a number of cases commenced by class counsel against different defendants in respect of alleged wrongful payments of trailing commissions to discount brokers. Some of those actions have been certified, including two which were certified after contested certification motions. The order the parties place before me tracks in large measure the certification orders already issued in those other matters.
Certification
4Pursuant to s. 5(1) of the CPA, the court shall certify a class proceeding if: (a) the pleadings or the notice of application disclose a cause of action; (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (c) the claims or defences of the class members raise common issues; (d) a class proceeding would be the preferable procedure for the resolution of the common issues; and (e) there is a representative plaintiff who would fairly and adequately represent the interests of the class, has produced a workable plan for the proceeding, and does not have an interest in conflict with the interests of other class members.
5It is plain that the first four of these criteria are met. The analysis was undertaken by Belobaba J. in Stenzler v. TD Asset Management Inc. 2020 ONSC 111, and again by Glustein J. in Gilani v. BMO Investments Inc., 2021 ONSC 3589. I see no reason to repeat their analysis here. The statements of claim in these actions are all taken from the same template. I adopt the conclusions of Glustein J. and Belobaba J. in these reasons, and conclude that (i) the pleadings disclose a cause of action; (ii) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (iii) the class members’ claim raise common issues, which are identified in the draft order placed before me; and (iv) a class proceeding is the preferable procedure for the resolution of the common issues.
6There remains only the last criterion, which requires that there be a representative plaintiff who would fairly and adequately represent the interests of the class, has produced a workable plan for the proceeding, and does not have an interest in conflict with the interests of other class members.
7A representative plaintiff must be prepared and able to vigorously represent the interests of the class: Rosen v. BMO Nesbit Burns Inc., 2013 ONSC 2144, at para. 73.
8The proposed representative plaintiff has sworn an affidavit on this motion, from which I conclude that he understands the class actions process, and the obligations of a representative plaintiff, and that he is prepared to meet those obligations. Moreover, he has considered whether he has any conflict with any other members of the class, and deposes that he has been unable to identify any. No conflict is alleged.
9The proposed litigation plan is appropriate.
10The proposed notices and the notice plan are also appropriate, subject to the following two changes required on the long form notice:
a. The first page of the long form notice has a typographical error which I have corrected and highlighted on the copy attached to the order. b. The second last paragraph in the long form notice advises the reader how to obtain as the long form notice. That paragraph shall be translated into French and added to the long form notice.
11I am satisfied that the notice plan will succeed in bringing the class proceeding and the opt-out process to the attention of most class members.
12I am also satisfied with the opt-out form.
13The plaintiff also seeks approval for the appointment of RicePoint as the notice and opt-out administrator, which I grant.
14Order to go in accordance with the draft I have signed.
J.T. Akbarali J.
Date: July 25, 2024