Court Of Appeal Summaries (September 1 – September 5) - Civil Law

Civil Decisions

Terry Longair Professional Corporation v. Akumin Inc., 2025 ONCA 606

Keywords: Securities, Secondary Market Misrepresentations, Public Corrections, Torts, Negligent Misrepresentation, Civil Procedure, Class Proceedings, Standard of Review, Leave to Commence Proceedings, Certification, Securities Act, R.S.O. 1990, c. S.5, ss. 130.1, 138.3(1), 138.5(1), (2) and (3) and 138.8(1), Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), Badesha v. Cronos Inc., 2022 ONCA 663, Housen v. Nikolaisen, 2002 SCC 33, Peters v. SNC-Lavalin Group Inc., 2023 ONCA 360, Drywall Acoustic Lathing and Insulation (Pension Fund, Local 675) v. Barrick Gold Corporation, 2024 ONCA 105, Mask v. Silvercorp Metals Inc, 2016 ONCA 641, Lochan v. Binance Holdings Limited, 2025 ONCA 221, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v. Barrick Gold Corporation, 2021 ONCA 104, Baldwin v. Imperial Metals Corporation, 2021 ONCA 838, Baldwin v. Imperial Metals Corporation, 2021 ONCA 838, Ironworkers Ontario Pension Fund (Trustee of) v. Manulife Financial Corp., 2013 ONSC 4083, Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Hollick v. Toronto (City), 2001 SCC 68

Lagana v. 2324965 Ontario Inc., 2025 ONCA 607

Keywords: Corporations, Audited Financial Statements, Oppression, Compliance Orders, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 1, s. 4, Business Corporations Act, R.S.O. 1990, c. B.16, s. 149(8), s. 253(1), s. 153(1), s. 154, s. 148, s. 245, Condominium Act, 1998, S.O. 1998, c. 19, Insurance Companies Act, S.C. 1991, c.47, Jeffery v. London Life Insurance Company, 2011 ONCA 683, Packall Packaging Inc. v. Ciszewski, 2016 ONCA 6, Krandel v. 1714176 Ontario Ltd., 2014 ONSC 4615, Waterloo North Condominium Corp. v. Silaschi, 2012 ONSC 5403, Middlesex Standard Condominium Corp. No. 643 v. Prosperity Homes Ltd., 2014 ONSC 1406, Metropolitan Toronto Condominium Corporation No. 1328 v. 2145401 Ontario Inc., 2019 ONCA 944, Waterloo Standard Condominium Corp. No. 399 v. Lee et al., 2023 ONSC 3807

Short Civil Decisions

Furney v. TT5 Inc., 2025 ONCA 610

Keywords: Civil Procedure, Vexatious Litigation, Costs, Rules of Civil Procedure, r 2.1.01

CIVIL DECISIONS

Terry Longair Professional Corporation v. Akumin Inc., 2025 ONCA 606

[Copeland, Monahan, Rahman JJ.A.]

Counsel:

E.N. Kolers, D.S. Murdoch and B.A.S. Davis, for the appellants

P. Guy and G. Myers, for the respondent

facts:

The appeal arose out of alleged misrepresentations made by the appellant corporation, Akumin Inc. ("Akumin"), in certain of its public disclosure documents and financial statements (collectively the "Impugned Statements"). The respondent sought certification of a class proceeding under ss. 130.1 and 138.3 of the Securities Act (the "SA"), as well as for common law negligent misrepresentation, on behalf of persons who purchased Akumin securities between May 15, 2019 and November 15, 2021, other than: (i) persons who acquired secured notes in the primary market in a distribution outside of Canada; and (ii) persons who sold all of their Akumin securities prior to August 15, 2021.

The respondent was a former shareholder of Akumin who purchased common shares on the secondary market. He alleged that the Impugned Statements misstated (among other things) Akumin's revenue, accounts receivable and net book value of property, plant and equipment ("PP&E) in 2019, 2020 and 2021, respectively; that these misstatements were "material" as defined in the SA; and that Akumin publicly corrected the misstatements in its disclosures on August 15, October 12, November 8 and November 15, 2021 (collectively the "Disclosures").

The motion judge granted leave to the respondent to proceed with his claim under s. 138.3(1) of the SA for secondary market misrepresentation (the "Leave Order"), and certified as a class proceeding pursuant to s. 5(1) of the Class Proceedings Act (the "CPA") the following claims: (i) the respondent's claim for secondary market misrepresentation under s. 138.3(1); (ii) his primary market misrepresentation claim under s. 130.1 of the SA; and (iii) his common law negligence claim (the "Certification Order"). The appellants appealed both the Leave Order and the Certification Order.

issues:

Did the motion judge err in granting leave to proceed with the secondary market misrepresentation claim by:
1. finding that the August 15, 2021 Disclosure constituted a public correction without connecting the Disclosure to any of the alleged misrepresentations and assessing how it would be "understood in an efficient market";
2. by finding that the October 12, 2021, November 8, 2021 and November 15, 2021 Disclosures were public corrections, despite the fact that these Disclosures were not followed by a statistically significant decline in the common share price; and
3. granting leave to holders of the secured notes to proceed with the Secondary Market Claim, when it was admitted that the secured notes did not trade in an efficient market?
Did the motion judge err in certifying the claim as a class proceeding by:
1. finding that a class proceeding was the preferable procedure in respect of the common law negligence claim;
2. extending the class period beyond October 12, 2021, despite the fact that there was no statistically significant decline in the common share price after that date;
3. certifying the primary market claim under s. 130.1 of the SAon behalf of Canadian purchasers of the secured notes, when the primary market offering of the secured notes was distributed through U.S. underwriters; and
4. certifying the Secondary Market Claim on behalf of holders of the secured notes, since the secured notes do not trade in an efficient market?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court began with an analysis of the standard of review for the appeals of the Leave Order and Certification Order. For the appeal of the Leave Order, whether the motion judge applied the correct test for identifying a public correction was a question of law, reviewable on a correctness standard. If the correct test was applied, the determination of whether there had been one or more public corrections was a decision of mixed fact and law, subject to review on a deferential standard of palpable and overriding error. For the appeal from the Certification Order, the identification of the necessary elements of the pleaded cause of action was a question of law, reviewable on a correctness standard. The assessment of whether the pleaded material facts supported those causes of action was a question of mixed fact and law, reviewable on a standard of palpable and overriding error. The identification of the correct legal test for determining whether there was "some basis in fact" for the certification requirements was subject to correctness review, while the determination of whether the evidence satisfied the requirement was reviewed for palpable and overriding error.

(a) Public correction in the context of secondary market misrepresentation claims

The Court held that while misrepresentation is central to the statutory cause of action, the public correction requirement plays a subsidiary but necessary role in the statutory scheme by establishing the end-point for market distortion caused by a misrepresentation. The Court clarified that a public correction is a disclosure reasonably capable of being understood in the secondary market as correcting what was misleading in the impugned statement. This occurs through an express correction, where a disclosure plainly states a prior statement was untrue, or, in some cases, through disclosures that, when considered in context, reveal to the market the existence of an untrue statement or omission. The court emphasized that a public correction need not be a "mirror-image" of the misrepresentation or a direct admission of untruth, but there must be some linkage or connection between the correction and the misrepresentation. The court also confirmed that nothing in its prior decision in Badesha v. Cronos Inc. ("Cronos") changed this established meaning of public correction.

(b) The motion judge did not err in finding that the Disclosures were public corrections since they expressly identified errors or misstatements in the Impugned Statements

The Court held that the motion judge applied the correct legal test for identifying public corrections, namely, whether the Disclosures expressly or on their face identified misleading or erroneous statements in Akumin's previous financial statements. The motion judge correctly pointed out that the August 15, 2021 Disclosure alerted the market to the fact that Akumin's previous financial reporting of credit losses could no longer be relied upon. Consistent with Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v. Barrick Gold Corporation, the August 15, 2021 Disclosure expressly identified certain statements in Akumin's prior financial documents that were untrue or misleading. The Court believed the motion judge rightly rejected the suggestion that this was not a public correction merely because Akumin was not then in a position to specify the extent of its prior misstatements.

The Court also found the motion judge did not err in finding that the remaining three Disclosures on October 12, November 8 and November 15, 2021, constituted public corrections. The Court believed the market reaction to a public correction could certainly be probative of whether the prior untrue statement was material for SA purposes. However, whether the corrective statement constituted a public correction did not require that it be followed by a statistically significant decline in the price of an issuer's securities. There was no materiality analysis for a public correction, nor was a drop in price required to establish a public correction. In this case, the Disclosures expressly identified misleading or incorrect statements in Akumin's prior financial statements, which established that they were public corrections for purposes of s. 138.3 claims.

(c) The motion judge did not err in granting leave to holders of secured notes to proceed with the Secondary Market Claim, despite the fact the secured notes did not trade in an efficient market

The appellants argued that a corrective statement could only constitute a "public correction" for purposes of s. 138.3 claims if the corrective statement related to securities that traded in an efficient market. The Court noted that the appellants cited no authority for this "efficient market" limitation on public corrections, other than the sentence in paragraph 66 of Cronos. The Court held the "efficient market" precondition proposed by the appellants would have been inconsistent with the text of the statute as well as the underlying goals of the statutory scheme. The text of s. 138.3(1) contained no such "efficient market" limitation on claims for secondary market misrepresentation, while ss. 138.5(1), (2) and (3) provided formulas for determining damages or limitations on liability in respect of securities that did not trade on a "published market." The motion judge found that there was credible evidence indicating that the price of the secured notes dropped following the August 15, 2021 Disclosure. Evidence on record also supported the conclusion that there was a reasonable possibility the Impugned Statements were material in relation to the secured notes. The Court saw no palpable or overriding error in those findings and thus dismissed this ground of appeal.

2. No.

(a) The motion judge properly certified the common law negligent misrepresentation claim

The appellants submitted that common law negligent misrepresentation claims in securities cases were generally not suitable for certification because proof of reliance, causation and damages all required individualized inquiries that did not lend themselves to resolution on a class-wide basis. They further argued that where there was a statutory misrepresentation claim as well as a common law claim for the same misrepresentation, the statutory claim was the preferable procedure for resolving any common issues and the common law claim ought not to be certified. Both arguments were considered and rejected by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green ("CIBC"). The Court applied the same conclusion. The common issues certified by the motion judge in relation to the common law misrepresentation claim could be resolved without the need to undertake individualized assessments of each investor's circumstances. The Supreme Court in CIBC also concluded that there was no difficulty in certifying a common law negligent misrepresentation claim alongside a statutory claim under s. 138.3 of the SA. The Court further pointed out that the objection raised by the defendants in CIBC, identical to that raised by the appellants here, "confused procedure with substantive causes of action." The preferability analysis under s. 5(1)(d) required a court to assess whether a class proceeding was the preferable procedure for pursuing a given cause of action. The Court saw no difficulty with the motion judge's certification of the common law misrepresentation claim and dismissed this ground of appeal.

(b) The motion judge did not err in extending the class period beyond October 12, 2021, despite the fact that there was no statistically significant decline in the common share price after that date

The Court saw no palpable or overriding error in the motion judge's finding that the August 15, 2021 and October 12, 2021 Disclosures only partially corrected the misrepresentations in the prior years' financial statements and those misrepresentations were not fully corrected until November 15, 2021. The respondent also argued there was no further price decline following the November Disclosures because the market had already priced in or "impounded" the value of new information provided in those latter two Disclosures. The Court agreed with the motion judge's conclusion that these are factual questions appropriate for determination at trial on a complete evidentiary record, rather than on a leave motion.

(c) The motion judge did not err in certifying the primary market claim under s. 130.1 of the SA on behalf of Canadian purchasers of the secured notes, regardless of whether the notes were distributed through U.S. underwriters

The appellants argued that because the notes were distributed exclusively through U.S. underwriters, it was not possible to identify two or more Canadian purchasers of the secured notes who fell within the class definition, as required by s. 5(1)(b) of the CPA. The Court found that the primary market class included all investors who purchased Akumin notes under a primary market distribution in Canada, even if the distribution was offered in Canada through U.S. underwriters. This was consistent with the offering memoranda for the secured notes, which expressly stated that the offering was being made "in Canada pursuant to Canadian securities laws." Thus, to the extent that the offering memoranda contained misrepresentations, s. 130.1 of the SA established a right of action for damages against the issuer. Akumin could not escape this statutory liability by choosing to distribute the notes to Canadian investors through U.S. underwriters.

(d) The motion judge did not err in certifying the Secondary Market Claim on behalf of holders of the secured notes despite the fact that the notes do not trade in an efficient market

The Court found that this final ground of appeal repeated the appellants' earlier argument that holders of the secured notes do not have a cause of action under Part XXIII.1 of the SA because the notes do not trade in an efficient market. The Court held the motion judge correctly found there is no such "efficient market" precondition for secondary market misrepresentation claims under the SA and this ground of appeal was therefore without merit.

Lagana v. 2324965 Ontario Inc., 2025 ONCA 607

[Roberts, Miller and Pomerance JJ.A.]

Counsel:

A.D. Ferguson and M. L. Pomerleau, for the appellant

J.F. Lalonde, for the respondents

facts:

The respondent and the appellant's father co-founded a corporation in 2012. When the appellant's father died later that year, the respondent became the sole director, and the appellant acquired his father's shares. Between 2013 and 2020, the corporation carried on business in the purchase and resale of development properties.

In 2021, the appellant requested financial records. The respondent provided unaudited statements. During this time, no auditors had ever been appointed, and no audited financial statements had been produced. The appellant applied for relief under s. 149(8) and s. 253(1) of the Ontario Business Corporations Act ("OBCA") seeking the appointment of an auditor and the production of audited statements dating back to 2013.

The application judge granted the order, holding that the Limitations Act, 2002 did not apply because the request was not a "claim" under the statute. The respondent appealed the term of the order that required the production of audited financial statements to shareholders for the years 2013 to 2020 to the Divisional Court. The respondent acknowledged the statutory obligation under the OBCA to provide audited financial statements but renewed the argument on appeal that the Limitations Act, 2002 applies to a compliance order made under s. 253(1) and precludes an order that would require the preparation of audited statements beyond the two-year limitation period. The Divisional Court allowed the appeal, determining that the Act applied and removed the requirement to provide audited statements outside the limitation period.

The appellant appealed the Divisional Court order.

issues:

Did the Divisional Court err in finding that the Limitations Act, 2002 applies to a claim for a compliance order made under s. 253(1) of the OBCA?

holding:

Appeal dismissed.

reasoning:

No. The Court found no error in the Divisional Court's conclusion that the Limitations Act, 2002 applies to claims for compliance orders under s. 253(1) of the OBCA. The appellant's argument that OBCA obligations are mere "statutory duties" without corresponding shareholder rights was rejected. The Court held that the duty to provide audited financial statements creates a corresponding shareholder right, and breach of that right gives rise to a "claim" subject to the two-year limitation period.

The Court clarified that Jeffery v. London Life does not support the view that compliance orders are disconnected from shareholder rights. The appellant's argument rested on a misstatement of the legal relations at issue in this appeal. Legal rights are most often expressed using three jural terms: (1) the rights-holder; (2) the person under a duty to the rights-holder; and (3) the thing to be done (or not done) by the duty bearer for the benefit of the rights-holder. The appellant characterized a compliance order as a two-term duty, involving a person under a duty and a thing to be done, but without any corresponding rights-holder whose claim could be subject to the Limitations Act, 2002. But what the appellant presented as a two-term statutory duty is actually a three-term statutory right: a right of one party (the shareholder) that the second party (the corporation) do something (provide the audited financial statements to the shareholder). The statute does not create a free-floating obligation, but an obligation that correlates to a right of the shareholders. Whether pursued by compliance or oppression, the claim remains the same and is properly governed by the Limitations Act, 2002.

The Court also cautioned that this appeal was not about the applicability of the Limitations Act, 2002 to compliance orders generally, and that it would be reckless to make sweeping generalizations about its applicability to the enforcement of statutory obligations beyond the instant appeal. The application of the Limitations Act, 2002 to compliance orders is a matter of statutory interpretation. Where obligations correspond to private rights, as under the OBCA, they are claims subject to limitation periods. Where obligations serve only public purposes, they may not be subject to limitation periods. Each case requires a careful assessment of the specific obligations created by the statute.

Furney v. TT5 Inc., 2025 ONCA 610

[Miller, Zarnett and Madsen JJ.A.]

Counsel:

M. Furney, acting in person

E. Kurz, for the respondent

Keywords: Civil Procedure, Vexatious Litigation, Costs, Rules of Civil Procedure, r 2.1.01

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Court Of Appeal Summaries (September 1 – September 5)

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