Shane C. D’Souza

This motion concerned the approval of a class action settlement regarding trailing commissions paid by TD Asset Management Inc. to discount brokers.

The plaintiff alleged improper payments and misrepresentations.

The court approved a $70.25 million settlement for the class, along with the proposed notice plan, distribution protocol, and appointment of an administrator.

The court also approved class counsel fees and disbursements, an interim payment to the litigation funder, release of the funder's security, and an honorarium for the representative plaintiff.

The plaintiff moved, with the defendant's consent, for an order certifying a class proceeding for settlement purposes under the Class Proceedings Act, 1992.

The action concerned the payment of trailing commissions to discount brokers from TD Mutual Funds, allegedly diminishing unit value due to breach of fiduciary duty.

The court found all certification criteria met, including disclosure of a cause of action, an identifiable class, common issues (breach of fiduciary duty), and that a class proceeding was the preferable procedure, especially in the context of a settlement.

The proposed representative plaintiff was deemed adequate, and the notice plan, long-form and short-form notices, and opt-out process were approved.

The action was certified for settlement purposes.

This case involved a shareholder dispute where OneMove Capital Corporation sought to affirm the validity of its proposal under s. 99 of the Ontario Business Corporations Act (OBCA) to remove and replace a director, and to compel Dye & Durham Limited to include this proposal in its information circular.

Dye & Durham brought a counter-application to omit the proposal and sought a declaration that OneMove and Tyler Proud breached a 2020 Investor Rights Agreement (IRA).

The court ruled that a shareholder cannot use the s. 99 proposal mechanism to remove a director, as director removal requires a special meeting requisitioned under s. 105 of the OBCA.

However, the court also found that OneMove's proposal, if permissible, would not fall under the "personal grievance" exception of s. 99(5)(b) or (b.1), as it related significantly to the company's business affairs.

Furthermore, the court determined that the IRA did not prohibit OneMove from seeking to remove its nominee director through proper OBCA channels, and dismissed Dye & Durham's other alleged breaches of the IRA as theoretical.

This application sought court approval for a plan of arrangement under the Business Corporations Act (Ontario) and the Trustee Act, involving Noranda Income Fund, 1884699 Ontario Inc., and Glencore Canada Corporation.

The arrangement facilitated Glencore's acquisition of all issued and outstanding priority units of the Fund for $1.98 per unit.

The court addressed the jurisdictional question regarding arrangements involving trusts, concluding it had jurisdiction under section 60 of the Trustee Act, applying an analogous test to corporate arrangements.

The court found the arrangement met the three requirements for approval: compliance with statutory and court-ordered requirements, good faith, and fairness and reasonableness, supported by independent advice, strong unitholder approval, and no dissent.

The application was granted.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

This is an appeal from a Superior Court order appointing a receiver and manager for Go-To Developments Holdings Inc. and related entities, and continuing freeze directions, following an Ontario Securities Commission investigation into alleged securities law breaches, including misappropriation of investor funds by Oscar Furtado.

The appellants challenged the application judge's denial of an adjournment and the admission of Mr. Furtado's examination transcripts.

The Court of Appeal dismissed the appeal, finding no error in the adjournment denial, especially in light of fresh evidence demonstrating further misconduct by Mr. Furtado.

The court declined to address the admissibility of transcripts as the issue was not raised below.

The Plaintiffs sought partial indemnity costs and disbursements totaling $1,391,715.45 following a successful, but partially limited, certification motion in a class action against several financial institutions.

The Defendants argued for a significant reduction, citing their substantial success in narrowing the class definition and potential double recovery from prior settlements.

The court awarded the Plaintiffs $700,000 in legal fees and HST, payable forthwith, and ordered disbursements of $468,705.06 payable in the cause.

The reduction in fees reflected the Defendants' success in streamlining the class action and reducing their potential liability, which the court deemed important for the integrity of the class actions regime and to discourage overambitious claims, without constituting a distributive costs award.

The plaintiff moved to certify a proposed class action against TD Asset Management Inc. (TDAM) alleging that TDAM improperly paid "trailing commissions" to discount brokers for "service and advice" that was not provided, thereby wasting Mutual Fund assets and causing investor losses.

The court granted certification for claims of breach of trust, breach of fiduciary duty, disallowance of improper expenses under s. 23.1 of the Trustee Act, and prospectus misrepresentation.

However, claims for knowing assistance, knowing receipt, and unjust enrichment were struck as analytically unworkable or lacking a proper basis in fact.

The court affirmed the plaintiff's standing as a unitholder to sue the trustee and manager, and found the class definition and common issues suitable for certification, reiterating that certification is a low hurdle not concerned with the merits.

This endorsement addresses costs arising from an unsuccessful and untimely motion brought by Sarah Werner to vary an order appointing a litigation guardian for her mother, Ida Rubin.

The court found Ms. Werner's proposed motion to be an obstructionist tactic, lacking merit, and brought in breach of a scheduling order.

Due to Ms. Werner's reprehensible litigation conduct, the court awarded full indemnity costs against her to the applicant and litigation guardian.

Additionally, costs were awarded to other parties (Morris Rubin and The Bank of Nova Scotia Trust Company) from the estate, with these amounts to be allocated solely to Ms. Werner's share.

Joseph Pernica, litigation guardian for Ida Rubin, sought a case conference regarding his status amidst upcoming motions.

The endorsement addresses a purported motion by Sarah Werner to vary an order appointing Pernica as litigation guardian for Ida Rubin, arguing Pernica exceeded his mandate by obtaining Ida Rubin's banking records and challenging Ida Rubin's capacity.

The court declined to schedule Ms. Werner's motion, finding she lacked standing under Rules 59.06 and 7.06(1)(b).

The court affirmed Pernica's role as litigation guardian and provided specific directions for any future motion by Ida Rubin herself to remove the litigation guardian, emphasizing the need for transparency, personal affidavit, and attendance in open court for cross-examination due to the risk of abuse in ex parte proceedings.

The court also declined to stay the case, emphasizing the need for information sharing for mediation and a mechanism for fund distribution.

In a proposed national class action alleging price-fixing in the foreign exchange market, the plaintiffs obtained an ex parte subpoena in the United States under 28 U.S.C. §1782 to compel pre-certification discovery from a non-party, Bloomberg LP.

The defendants brought a motion to enjoin the plaintiffs from taking any steps in furtherance of the subpoena without authorization from the Ontario court.

The court granted the motion, finding that the plaintiffs had circumvented Ontario's rules and jurisprudence regarding the discovery of non-parties and pre-certification discovery in class actions.

The court held that it has jurisdiction to control its own process and regulate the examination of non-parties for an Ontario action.

The representative plaintiff in a class action sought costs following a successful second motion under s. 5(1)(a) of the Class Proceedings Act and a subsequent consent certification.

The court awarded the plaintiff partial indemnity costs of $31,089 for the contested motion.

For the balance of the certification motion, the court ordered a hybrid costs award because the defendants did not communicate their consent in a timely fashion, fixing costs at $65,235, with one-third payable forthwith and two-thirds payable in the cause.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

The plaintiff, Keatley Surveying Ltd., brought a class action against Teranet Inc., alleging copyright infringement for scanning, copying, and making available online plans of survey registered in Ontario's electronic land registry system.

Both parties moved for summary judgment on common issues, primarily concerning whether copyright in the plans belonged to the Province of Ontario under s. 12 of the Copyright Act upon registration or deposit.

The court held that while copyright subsisted in the plans, it belonged to the Province of Ontario pursuant to s. 12 of the Copyright Act, as a result of their registration or deposit in the land registry office, which transferred ownership of the property, including copyright, to the Crown.

Consequently, Teranet, acting under license from the province, did not infringe copyright.

The defendant's motion for summary judgment was granted, and the class action was dismissed.

The plaintiffs brought a motion seeking leave to amend their statement of claim and to compel answers to certain refused questions arising from examinations for discovery in an action alleging negligence and breach of contract relating to an oil tank leak at their residential property.

The proposed amendments included pleading that the defendant sold the oil tank and breached obligations under the Sale of Goods Act.

The court held that the amendments did not introduce a new cause of action but rather advanced alternative legal bases and particulars arising from the same factual matrix already pleaded.

Accordingly, the amendments were permitted despite limitation period arguments.

The court also ruled on several discovery refusals, ordering answers to questions relevant to the defendant’s knowledge of corrosion risks and similar tank issues, subject to proportionality considerations.

The self‑represented plaintiff sought damages against a bank after a cheque issued jointly to the plaintiff and a contractor’s corporation was deposited into the corporation’s account.

The plaintiff alleged the bank had wrongfully negotiated the cheque contrary to advice that both payees must attend in person.

The court found no evidence that the bank made such a representation and held that under the Bills of Exchange Act a cheque payable to joint payees may be negotiated where it bears the endorsement of the absent payee and the funds are deposited to the present payee’s account.

The evidence showed the plaintiff voluntarily endorsed the cheque and delivered it to the contractor as part of an arrangement to obtain insurance proceeds.

The bank’s conduct was consistent with both the governing law and its policies, and any dispute regarding the funds was between the plaintiff and the contractor.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.