Canadian Class Actions Law -

Jennifer Imrie -

The plaintiffs in this putative class action unsuccessfully sought to exclude the defendant, Sun Life, from participating in a motion for the approval of a third party funding agreement. In particular, the plaintiffs sought orders permitting them to (i) to bring the funding approval motion on an ex parte basis (ii) close the motion to the public, and (iii) have the motion materials for the motion sealed.  Justice Perell dismissed the plaintiffs’ motion in its entirety and pursuant to s. 12 of the Class Proceedings Act, set out the procedures to be followed by the parties on the funding approval motion.

The plaintiffs submitted that the disclosure of the third party funding agreement would reveal privileged information regarding the legal advice and the plaintiffs’ litigation strategy.  It was argued that the disclosure of the agreement would imperil the privilege which, in turn, would adversely affect access to justice for the class, risk a fair trial and harm the administration of justice.  Sun Life opposed the motion.

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In the CCAA proceeding of Timminco Limited, on April 27, 2012, Justice Morawetz of the Ontario Superior Court of Justice denied, for the time being, a motion brought by the plaintiff in the securities class action Pennyfeather v. Timminco Limited to lift the stay of proceedings against Timminco and the other defendants to allow the class action to continue.

Timminco consented to a partial lifting of the stay to allow the plaintiff to apply to the Supreme Court of Canada for leave to appeal a recent decision of the Court of Appeal for Ontario relating to limitation period issues under Part XXIII.1 of the Ontario Securities Act.

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Vanessa Voakes –

In a recent decision on a procedural motion in Labourers’ Pension Fund of Central and Eastern Canada v. Sino-Forest Corporation (one of the largest proposed securities class actions to be brought in Canada to date), Justice Perell added to the list of cases in which he has ordered the Defendants to deliver a statement of defence in advance of the hearing of the certification motion.¹

On the same motion, Justice Perell also considered the fairness and efficiency of allowing the certification motion and the motion to obtain leave to advance secondary market claims under Part XXIII.1 of the Ontario Securities Act (OSA) to be heard at the same time.  The Defendants advocated for a sequential approach to the hearing of the motions (leave motion, Rule 21 motions, followed by the certification motion), however Justice Perell, anticipating appeals from every motion, found judicial economy in hearing everything at once and denying the appellate courts “the pleasure of three visits from one or two generations of Class and Defence Counsel.”

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James S.F. Wilson -

An Ontario lawyer successfully moved for certification of a class action alleging that the Carswell database search and retrieval service known as “Litigator” infringes the copyright of the authors of legal documents that have been filed in Canadian courts.  In Waldman v. Thomson Reuters Corporation, Justice Perell of the Ontario Superior Court of Justice stressed that the merits of the action would be considered on another day; at the certification stage, the court’s “gatekeeper” function was limited to ensuring that the technical and procedural elements of the test for certification were satisfied.  In this case, His Honour found that the test was met.  

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Alan D’Silva, Lesley Mercer and Ingrid Minott  -  

In Sharma v. Timminco Limited, a decision released on February 16, 2012, the Court of Appeal for Ontario determined that section 28 of the Class Proceedings Act, 1992 (CPA) which allows for the suspension of a limitation period applicable to a cause of action asserted in a class proceeding, is not triggered until after leave is granted under Part XXIII.1 of the Securities Act to commence a statutory cause of action for misrepresentation.¹

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