Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRIS J. EKLUND, Plaintiff
– and –
VICTORIA GOLD CORPORATION, JOHN MCCONNELL, MARTY RENDALL, MARK AYRANTO, T. SEAN HARVEY, CHRISTOPHER HILL, JACQUES PERRON, MICHAEL MCINNIS, SEAN ROOSEN, LETHA MACLACHLAN, STEPHEN SCOTT, RIA FITZGERALD, STEVE HAGGARTY, KIMBERLEY KEATING, SUSAN FLASHA, and JOSEPH OVSENEK, Defendants
– and –
ROBERT JACOB VAN SANTEN as Trustee of THE VAN SANTEN FAMILY TRUST, proposed Intervenor
BEFORE: Justice E.M. Morgan
COUNSEL: Matthew Taylor and Luca Bellisario, for the Plaintiff
Joseph Blinick and Shaan Tolani, for the Defendants, John McConnell, Marty Rendall, Mark Ayranto, T. Sean Harvey, Christopher Hill, Jacques Perron, Michael McInnis, Sean Roosen, Letha MacLachlan, Stephen Scott, Ria Fitzgerald, Steve Haggarty, Kimberley Keating, Susan Flasha, and Joseph Ovsenek (the “Individual Defendants”)
Garett Hunter and Anthony O’Brien, for the proposed Intervenor
HEARD: January 28, 2026
FUNDING APPROVAL MOTION
1The Plaintiff in this proposed investors’ class action seeks approval for third party funding.
I. Motion to intervene
2As a preliminary matter, the plaintiff in a parallel action in British Columbia [B.C. Court File. SE45535], Robert Jacob Van Santen as Trustee of The Van Santen Family Trust (“Van Santen”), seeks to intervene in this motion. The putative classes in Ontario and British Columbia overlap to a significant degree, and Van Santen is a member of both classes. The Ontario and the B.C. action each propose to represent investors in Victoria Gold Corporation across multiple jurisdictions.
3As a member of the putative class in this action, Van Santen has a right under s. 14(1) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”), to seek to participate at any stage of this action, including at the funding approval stage. However, granting him participatory status is discretionary on the part of the Court. I am not inclined to exercise that discretion here.
4The B.C. action commenced in August 2024 and has not materially progressed past the issuance of the plaintiff’s pleading. There was an initial case management conference held a year later – on August 19, 2025 – the B.C. court did not schedule a certification motion or any other motion or procedural step. Van Santen and his counsel have not prepared any expert reports, and other than seeking to oppose the Ontario Plaintiff’s funding, they do not appear to have taken any meaningful steps to advance the B.C. action since that initial case conference.
5At the hearing of the intervention motion before me, counsel for Van Santen did not exactly contend that the Ontario Plaintiff’s proposed third party funding does not meet the criteria set out for such funding in section 33.1 of the CPA. Rather, what he said is, in short, the B.C. claim is self-funded, so it will save the class some money.
6As any new barrister knows – if, like me nearly 40 years ago, they bought a polyester rather than a breathable wool robe – cheaper is not always better.
7Although I don’t know any more about the B.C. litigation than the somewhat sparse information in the present motion record, the case appears to be languishing. By contrast, Ontario counsel advise that experts have been retained and expert reports are on their way to being produced; moreover, Plaintiff’s counsel is prepared to proceed with leave and certification and a date has been set. The only delay has been a question over the insolvency of the corporate Defendant and how that might impact on the individual Defendants who are directors and officers of the company. That question, however, is to be adjudicated in Commercial List, as its relevance goes beyond this proposed class action.
8Needless to say, this is not the time or place for a carriage motion-style comparison of the two cases. There is no provision in the CPA or any other statute or set of rules for an interprovincial carriage motion. More to the point, third party funding approval under s. 33.1 does not turn on the Plaintiff’s claim being a guaranteed success. The fact that a credible funder is prepared to take on the risk is generally evidence enough that the claim itself is at least an arguable one with some prospect of success. The fact that a similar claim is – for better or for worse – being pursued in another jurisdiction, does not find a place in the statutory requirements for funding and plays no role in the analysis.
9In addition, it is not at all clear whether the British Columbia action will really be cheaper. Van Santen has not put his retainer agreement with B.C. counsel in the record. I therefore have no way of knowing whether his lawyers will be charging a larger or smaller fee than the Ontario lawyers.
10I understand that British Columbia is a ‘no costs’ jurisdiction for class actions, and so, unlike in Ontario, Van Santen does not have to worry about costs being awarded against him or the B.C. class, but that does not really address the overall price of legal representation. Without actually comparing retainer agreements, there is no basis on which to surmise which of the two actions will ultimately cost more for the respective classes.
11I therefore respectfully decline Van Santen’s request to intervene.
II. Third party funding approval
12The Plaintiff seeks an Order under section 33.1 of the CPA approving the litigation funding agreement entered into between himself, on one hand, and Technology Insurance Company, Inc. and Lloyd’s Syndicate 1414 (the “Insurers”) on the other (the “Agreement”).
13Section 33.1 provides:
Third-party funding agreements
(1) In this section,
“third-party funding agreement” means an agreement in which a funder who is not a party to a proceeding under this Act agrees to indemnify the representative plaintiff or provide money to pursue the proceeding under this Act, in return for a share of any monetary award or settlement funds or for any other consideration.
Contingent on court approval
(2) A third-party funding agreement is subject to the approval of the court, obtained on a motion of the representative plaintiff made as soon as practicable after the agreement is entered into, with notice to the defendant.
No force or effect unless approved
(3) A third-party funding agreement that is not approved by the court is of no force or effect.
Agreement to be provided to defendant and filed
(4) For the purposes of the motion, the representative plaintiff shall serve on the defendant, or provide in any other way the court orders, a copy of the third-party funding agreement, and shall file the copy with the court.
Permissible redaction
(5) The representative plaintiff may, subject to the regulations, redact from the copy of the third-party funding agreement provided and filed under subsection (4) information that may reasonably be considered to confer a tactical advantage on the defendant, but no other information shall be redacted from the copy.
Agreement to be provided to judge
(6) The representative plaintiff shall provide to the judge who will be presiding at the hearing of the motion a copy of the complete and unredacted third-party funding agreement, which shall not form part of the court file.
Requirement to disclose
(7) The court may order the representative plaintiff to disclose to a defendant any information in the third-party funding agreement that has been redacted in accordance with subsection (5).
Submissions
(8) The defendant is entitled to make submissions at the hearing of the motion.
Factors
(9) The court shall not approve a third-party funding agreement unless,
(a) the court is satisfied that,
(i) the agreement, including indemnity for costs and amounts payable to the funder under the agreement, is fair and reasonable,
(ii) the agreement will not diminish the rights of the representative plaintiff to instruct the solicitor or control the litigation or otherwise impair the solicitor-client relationship,
(iii) the funder is financially able to satisfy an adverse costs award in the proceeding, to the extent of the indemnity provided under the agreement, and
(iv) any prescribed requirements and other relevant requirements are met; and
(b) it is a term of the agreement that the funder shall be subject to,
(i) the same confidentiality requirements in respect of confidential or privileged information in the proceeding to which the representative plaintiff would be subject, and
(ii) the deemed undertaking rules set out under the rules of court, as if the funder were a party to the proceeding.
Same, independent legal advice
(10) In determining whether a third-party funding agreement meets the requirements of clause (9) (a), the court shall consider whether the representative plaintiff received independent legal advice with respect to the agreement.
Indemnity for costs
(11) If costs are ordered to be paid by the representative plaintiff, the defendant has the right to recover the costs directly from the funder, to the extent of the indemnity provided under an approved third-party funding agreement.
Security for costs
(12) The defendant is entitled, on motion, to obtain from the funder security for costs to the extent of the indemnity provided under an approved third-party funding agreement, if,
(a) the funder is ordinarily resident outside Ontario;
(b) the defendant has an order against the funder for costs in the same or another proceeding that remain unpaid in whole or in part; or
(c) there is good reason to believe that the funder has insufficient assets in Ontario to pay the costs.
14The Plaintiff has obtained independent legal advice from Mr. Garth Myers, a respected class action lawyer well known to this court. Mr. Myers’ certificate to this effect is in the record before me.
15The Plaintiff has also been diligent in pursuit of this matter. He has brought this motion as soon as practicable after entering into the Agreement and has provided the Defendants with notice of the motion, as required.
16The Agreement is a so-called After-the-Event (“ATE”) insurance policy. It will indemnify the Plaintiff for adverse costs and disbursements to a set amount. The insurance premium will be paid from any proceeds of settlement or judgment, and no additional premium is payable in the event of a loss.
17I have no reason to doubt that the Insurers have the financial strength to honour the terms of the Agreement. In addition, if there is an adverse costs award or disbursements incurred above the amounts fixed in the Agreement, the Plaintiff is to be reimbursed by his counsel pursuant to the terms of the retainer agreement.
18The Insurers’ premium is the lesser of a capped confidential amount (which has been disclosed to the court but not to the Defendants or made public) or 10% of any successful outcome, net of legal fees. These terms make the costs to the Plaintiff and class at most equal to the costs of funding offered by the Class Proceedings Fund (“CPF”) and, depending on the amount of recovery for the class in the case, potentially less than the CPF’s uncapped 10% statutory levy.
19Under the Agreement, the Plaintiff remains in control of the litigation. The Agreement does not confer on the Insurer any control over or right to provide input into litigation decisions, which are to be made by the Plaintiff on the advice of counsel.
20Furthermore, the Insurers are subject to the same confidentiality requirements as are the parties to the proceedings. The Agreement requires the Insurers to maintain privilege and confidentiality including adherence and to adhere to the deemed undertaking rule. The Plaintiff’s sharing of documents with the Insurers will not constitute a waiver of privilege.
21Counsel for the Plaintiff notes that the terms of the Agreement are virtually identical to the terms of the third party funding arrangements recently approved in Lewis v. Uber Canada Inc, 2023 ONSC and Rodd v. Intuit Canada ULC, 2025 ONSC 6421. I see no reason not to approve these terms here as well.
III. Disposition
22I am satisfied that the Agreement is fair and reasonable and in the best interests of the class. It satisfies the requirements set out in the CPA and is hereby approved.
IV. Costs
23The Defendants took no position on this motion and did not cause the Plaintiff to incur any compensable costs. However, the Plaintiff was successful in responding to the motion to intervene and he deserves some costs for that motion.
24Plaintiff’s counsel has submitted a Costs Outline in which they seek $20,670.52 in partial indemnity costs for the motion to intervene. Van Santen’s counsel has likewise submitted a Costs Outline in which they would seek $10,343.30 in partial indemnity costs had they been successful on the motion to intervene.
25Although Plaintiff’s costs are roughly double those outlined by Van Santen, I cannot fault Plaintiff or his counsel for putting their all into the response to the intervention motion. For Van Santen, it was a maneuver that might have been worth a try but that would not impact on his efforts as representative plaintiff in British Columbia. For the Ontario Plaintiff, on the other hand, the proposed intervention was aimed at derailing his case altogether and was therefore closer to an ‘all or nothing’ proposition.
26Rule 57.01(1)(0.a) of the Rules of Civil Procedure encourages courts to take into account the principle of indemnity for the successful party. This is then coupled with Rule 57.01(1)(0.b), which advises that the indemnification of the successful party should reflect an “amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.”
27Under the circumstances, the life of the Ontario action may well depend on the Plaintiff having obtained the funding at issue. It cannot have been beyond Van Santen’s expectation that the Plaintiff would contest his proposed intervention vigorously, and would incur legal expenses that potentially surpassed Van Santen’s own legal expense.
28The amount sought by the Plaintiff is not objectively unreasonable and, in my view, is within the range of what would have been foreseeable to a proposed intervener seeking to deny the Plaintiff his sought-for funding.
29Using a round number for convenience, Van Santen shall pay the Plaintiff costs in the all-inclusive amount of $20,670.
Morgan J.
Date: February 2, 2026