Serge Kalloghlian

Following a summary judgment motion in a class proceeding where the plaintiff succeeded on four of five common issues, the plaintiff sought an elevated partial indemnity costs award of $1,287,296.

The defendant argued for partial indemnity costs capped at $500,000 due to divided success.

The court rejected the elevated scale, applied the recommended Grid rates for hourly fees, and reduced the fees by one-quarter to reflect the divided success.

Costs were fixed at $775,000 all-inclusive, payable within 30 days.

The plaintiff, Barry Lavender, representing a class of investors, moved for summary judgment on five common issues in a class action against Miller Bernstein LLP, the auditor of a defunct securities dealer, Buckingham Securities.

The class members suffered $10.6 million in losses due to Buckingham's failure to segregate client assets and maintain minimum capital, which the defendant auditor negligently failed to report in Form 9s filed with the Ontario Securities Commission (OSC).

The court applied the Anns-Cooper analysis to establish a duty of care owed by the auditor to the class members, finding sufficient proximity and foreseeability, and no concerns of indeterminate liability.

The court found that Buckingham was required to segregate assets and failed to do so, and that the defendant breached its duty of care, causing damages.

However, the court could not determine the quantum of damages on a class-wide basis from the evidence presented.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

Following a major appellate decision regarding the tolling of limitation periods in securities class actions, the successful parties in two of the appeals sought their costs.

The opposing parties argued for reduced costs on the basis of public interest, over-lawyering, and the fact that the court had overruled its own prior jurisprudence.

The Court of Appeal rejected these arguments, finding the claimed amounts to be fair and reasonable given the complexity and significance of the proceedings.

Costs of $151,250 and $100,000 were awarded to the respective successful parties on a partial indemnity scale.

In three related securities class action appeals, the court reconsidered whether a statutory secondary-market misrepresentation claim under s. 138.3 of the Securities Act is time-barred unless leave is obtained within the s. 138.14 limitation period.

The court overruled Timminco and held that, for purposes of s. 28 of the Class Proceedings Act, 1992, the statutory claim is asserted when the representative plaintiff pleads the statutory cause of action, the supporting facts, and an intention to seek leave within a timely commenced class proceeding.

The court also upheld the motion judge's interpretation of the s. 138.8 leave standard as screening out hopeless claims, while holding that the Green certification decision erred in failing to consider certifying common negligent misrepresentation issues other than reliance.

The plaintiffs' appeal in Green was allowed in part and the defendants' appeals in Silver and Celestica were dismissed.

The plaintiffs sought leave to appeal a case management judge's order that amended the definition of an Ontario global class by removing members who participated in a court-approved settlement of parallel U.S. proceedings.

The plaintiffs argued the judge lacked jurisdiction, was barred by issue estoppel, and erred in recognizing the U.S. settlement without evaluating its merits.

The Superior Court of Justice dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no palpable or overriding errors in the motion judge's exercise of discretion or application of international comity principles.

The defendants brought a motion to amend the class definition in an Ontario securities class action to exclude persons who would be bound by a pending settlement in parallel U.S. class proceedings.

The U.S. settlement was conditional on the Ontario court granting this amendment.

The court applied the Currie factors and recognized the U.S. court's judgment approving the settlement, finding that the U.S. court had a real and substantial connection to the claims, and that the absent class members were accorded procedural fairness and adequate representation.

The court further determined that amending the class was the preferable procedure, as it would facilitate access to justice for the overlapping class members without unfairly prejudicing the remaining class members.

The motion was granted and the class definition was amended.

The moving parties in a proposed securities misrepresentation class proceeding sought court approval of a third‑party litigation funding agreement prior to certification.

The proposed agreement provided that the funder would pay certain disbursements and indemnify the plaintiffs against adverse costs in exchange for a capped commission from any settlement or judgment.

The court considered the developing law on litigation funding, including concerns about champerty and maintenance, and confirmed that such agreements are not categorically unlawful but require judicial approval.

Finding that the agreement preserved counsel’s independence, protected defendants through security for costs, and promoted access to justice, the court approved the funding arrangement.

The defendants sought leave to appeal an order certifying the action as a class proceeding regarding allegedly defective heart devices.

The defendants argued the motions judge misconstrued the 'some basis in fact' standard and that the class definition was overly inclusive.

The Divisional Court denied leave to appeal, finding the motions judge correctly applied the evidentiary principles from Hollick v. Toronto and made factual findings entitled to deference.

The motion was dismissed with costs fixed at $15,000.