Wendy Matheson

Following a prior trial and a partial appeal, the court conducted a rehearing to determine the appropriate remedy in a certified class proceeding concerning participating account transactions and an unlawful pre‑paid expense asset used by life insurance companies.

The Court of Appeal had upheld the finding of illegality but directed the trial judge to determine the monetary amounts required to unwind the transactions and restore funds to participating policyholder accounts.

The central disputes concerned the calculation of merger synergy deductions, whether historical amortization charges should be deducted when determining the benefit received by participating accounts, the interpretation of a 6.91% return provision, and the appropriate “effective date” for unwinding the transactions.

The court concluded that amortization expenses since 1997 must be deducted to reflect the “no contribution/no benefit” principle and interpreted the Court of Appeal formula as adding, not subtracting, the 6.91% return to the participating accounts.

The court fixed December 31, 2011 as the effective date and ordered that $284,675,000 be paid to the participating accounts, with cancellation of the pre‑paid expense asset and related amortization charges.

On a consent motion in a proposed class action concerning ticket resale practices, the court considered certification for settlement purposes and approval of a negotiated settlement under the Class Proceedings Act, 1992.

The action alleged that the defendants’ primary and secondary market ticket sales violated the Ticket Speculation Act through resale pricing and related practices.

The court held that the criteria for certification under s. 5(1) were satisfied, including the existence of an identifiable class and common issue relating to whether the defendants breached the statute.

The proposed settlement provided refunds of $36 per ticket to class members and required changes to the defendants’ ticket resale website practices.

The court concluded the settlement and the requested contingency fee arrangement were fair, reasonable, and in the best interests of the class.

The plaintiff sought certification of a proposed class action alleging copyright infringement against a legal publisher that reproduced lawyers’ court documents within an electronic research database without express permission.

The defendants argued the claim conflicted with the open court principle, lacked common issues, and would be unmanageable due to questions of originality, authorship, client participation, and solicitor‑client privilege.

The court held that the certification threshold is procedural and low under the Class Proceedings Act, 1992, and that several systemic questions about the defendant’s conduct and defences, including fair dealing, implied consent, and public policy, were capable of common resolution.

Although issues such as authorship, ownership, and damages would require individual determinations, the court concluded these did not preclude certification.

The proposed class was narrowed to lawyers and paralegals in private practice, and the action was certified with modified common issues.