) ) MARK DUGAL, AARON MURPHY, HARLEN BOMBERRY, JOHN O’MALLEY, GAETAN SIGUOIN, ARMAND CHARBONNEAU, PAUL MITCHELL, STEVEN MOFFATT, JOHN VASCONCELOS v. DAVID, 2013 ONSC 327

CITATION : Dugal, Murphy v. Manulife Financial Corporation, 2013 ONSC 327 DIVISIONAL COURT FILE NO.: 9/13 DATE: 20130114 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) MARK DUGAL, AARON MURPHY, HARLEN BOMBERRY, JOHN O’MALLEY, GAETAN SIGUOIN, ARMAND CHARBONNEAU, PAUL MITCHELL, STEVEN MOFFATT, JOHN VASCONCELOS AND DAVID THOMPSTONE AS TRUSTEES OF THE IRONWORKERS ONTARIO PENSION FUND AND LEONARD SCHWARTZ Appellants (Plaintiffs) – and – MANULIFE FINANCIAL CORPORATION, DOMINIC D’ALESSANDRO, GAIL C.A. COOK-BENNETT, ARTHUR R.

SAWCHUK AND PETER RUBENOVITCH Respondents (Defendants) )) )) )) )) ))))))))))))))))) A. Dimitri Lascaris and Michael D. Wright, for the Plaintiffs Patricia D. S. Jackson and Andrew Gray¸ for the Respondent/Defendant, Manulife Financial Corporation Linda Fuerst , for the Defendant, Dominic D’Alessandro David D. Conklin , for the Defendants, Gail C.A. Cook–Bennett and Arthur R. Sawchuk Eric S. Block and Byron D.

Shaw , for the Defendant, Peter Rubenovitch ) ) HEARD at Toronto: January 14, 2013 HARVISON YOUNG J. (orally) [ 1 ] This motion for leave to appeal arises out of a class action proposed by the plaintiff investors alleging inadequacies in Manulife Financial Corporations Risk Management Policies and Practices. [ 2 ] The plaintiffs have asserted a cause of action under

Part XX111.1 of the Ontario Securities Act for secondary market misrepresentation with respect of which they require leave under s. 138.8(1) of the Act . [ 3 ] This leave motion and the certification motion are to be heard in March, 2013, at least as presently scheduled. The defendants advised the plaintiffs that they would not be filing any affidavits on the leave motion.

The plaintiffs then summoned two Manulife employees under Rule 39.03 to provide what the plaintiffs believe would be relevant evidence with respect to Manulife Risk Management Practices for use during the leave motion. [ 4 ] The defendants then brought a motion to quash the two summonses and the plaintiffs brought a cross motion to compel the defendants to file affidavits. Belobaba J. granted the motion to quash the summonses and dismiss the cross motion, holding that the two

issues, (

i) whether the defendants are required to serve and file affidavits on a s. 138.1 motion; and (ii) the availability of Rule 39.03summonses in these circumstances have been fully adjudicated in this Court, referring in particular to Lax J.’s decision in Ainslie v. CVTechnologies Inc. (2008), (ON SC), 93 O.R. (3d) 200 (SCJ) and to a number of written recent cases which havesubsequently accepted and applied her analysis, for example, Dobbie v. Arctic Glacier Income Fund et al., 2011 ONSC 25 and Sharmav.

Timminco Ltd., 2010 ONSC 790. [5] While the applicants argue that the circumstances of this case (where MFC has served a Request to Admit) justify adeparture from cases such as Ainslie, the heart of their submissions rest on the underlying argument that Ainslie and the decisions whichfollowed and applied it, were wrong.

All of these arguments of law, principle and present circumstances were before Belobaba J. and hewas alive to them. [6] Having reviewed the materials filed and heard the able submissions of counsel, I am unable to conclude that the applicantshave shown any reason to doubt the correctness of the decision. The jurisprudence, particularly as it has developed recentlyoverwhelmingly supports the motion judge’s

interpretation of s. 138.8 that it does not require the defendants to deliver affidavits or to besubjected to cross examination when they do not intend to lead evidence in response to the leave motion. [7] The correctness of this decision is not open to serious debate and I further note that it cannot be said that there are conflictingdecisions on the points, notwithstanding the obiter comments of van Rensburg J. in Silver v. Imax Corp. discussed by Belobaba J. andnotwithstanding the fact that leave to appeal was granted in Ainslie. [8] The application for leave to appeal is therefore dismissed.

COSTS [9] Costs to the individual defendants in the amount of $2,500 and to MFC in the amount of $5,000. HARVISON YOUNG J. Date of Reasons for Judgment: January 14, 2013 Date of Release: January 16, 2013 CITATION: Dugal, Murphy v. Manulife Financial Corporation, 2013 ONSC 327 DIVISIONAL COURT FILE NO.: 9/13 DATE: 20130114 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURTHARVISON YOUNG J.BETWEEN:

MARK DUGAL, AARON MURPHY, HARLEN BOMBERRY, JOHN O’MALLEY, GAETAN SIGUOIN, ARMAND CHARBONNEAU, PAUL MITCHELL, STEVEN MOFFATT, JOHN VASCONCELOS AND DAVID THOMPSTONE AS TRUSTEES OF THE IRONWORKERS ONTARIO PENSION FUND AND LEONARD SCHWARTZ Appellants (Plaintiffs) – and – MANULIFE FINANCIAL CORPORATION, DOMINIC D’ALESSANDRO, GAIL C.A. COOK-BENNETT, ARTHUR R. SAWCHUK AND PETER RUBENOVITCH Respondents (Defendants) ORAL REASONS FOR JUDGMENT HARVISON YOUNG J. Date of Reasons for Judgment: January 14, 2013 Date of Release: January 16, 2013