motion record of the plaintiff on the fee approval and settlement approval motions is available here

478 Pages·2015·14.39 MB·English

Court File No. O7-CY-339254 CP
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS F. CAPONI
Plaintiff
-and-
THE CANADA LIFE ASSURANCE COMPANY,
A.P. SYMONS, D. ALLEN LONEY AND JAMES R. GRANT
Defendants
Proceeding under the Class Proceedings Act, 1992
MOTION RECORD OF THE PLAINTIFF
(SETTLEMENT APPROVAL MOTION AND FEE APPROVAL MOTION)
May 1,2015
KOSKIE MINSKY LLP
20 Queen Street West
Suite 900, Box 52
Toronto, ON M5H 3R3
Mark Zigler LSUC#: 197578
Tel: [phone]
Fax [phone]
Jonathan Ptak LSUC # 45773F
Tel: [phone]
Fax: [phone]
Jody Brown LSUC # 58844D
Tel: [phone]
Fax: [phone]
Lawyers for the Plaintiff
1
TO: BLAKE CASSELS & GRAYDON LLP
Blake, Cassels & Graydon LLP
199 Bay Street, Suite 4000
Commerce Court West
Toronto ON M5L 1A9
Jeffrey Galway
Tel: [phone]
Fax: [phone]
Lawyers for the Defendant
The Canada Life Assurance Company
AND TO: HICKS MORLEY HAMILTON
STEWART STORIE LLP
77 King Street West, 39th Floor
Box 371, TD Centre
Toronto, ON M5K 1K8
John C. Field
Tel: [phone]
Fax: [phone]
Lawyers for the Defendants
A.P. Symons, D. Allen Loney and James R. Grant
TABLE OF CONTENTS
Tab Document Description Page
1. Notice of Motion – Settlement Approval Motion 1
2. Notice of Motion – Fee Approval Motion 8
3. Affidavit of Jody Brown, sworn April 15, 2015 – Fee 15
Approval and Settlement Approval
A Exhibit “A” executed Canada Life Settlement Agreement, 62
dated January 27, 2015
B Exhibit “B” executed Trustee Settlement Agreement, dated 80
September 17, 2014
C Exhibit “C” copy of the 2001 Plan Text, effective January 1, 90
2001
D Exhibit “D” copy of the 2001 Plan Text, as amended, 133
effective January 31, 2005
E Exhibit “E” Amended Statement of Claim, dated September 176
26, 2007, amended effective April 29, 2014
F Exhibit “F” Statement of Defence and Counterclaim of 202
Canada Life
G Exhibit “G” Statement of Defence and Counterclaim of the 210
Trustees
H Exhibit “H” certification order of Justice Cullity dated May 216
11, 2009
I Exhibit “I” Justice Cullity’s Reasons on certification, dated 222
January 13, 2009
J Exhibit “J” expert report of Mr. Levy regarding the 2005 240
actuarial standard, dated June 14, 2013
K Exhibit “K” expert report of Mr. Levy regarding damages to 250
the class as a result of the partial wind-up, dated June 14,
2013
L Exhibit “L” expert reply report of Mr. Levy regarding 279
damages to the class as a result of the partial wind-up, dated
November 29, 2013
M Exhibit “M” response of Mr. Levy to inquiries regarding 311
damages to the class, with updated damage calculations as
of June 2014
N Exhibit “N” responding expert report of Ms. Jill Wagman, 320
dated September 2013
O Exhibit “O” responding expert report of Mr. Chris Brisbois, 399
dated September 2013
P Exhibit “P” retainer Agreement signed by Mr. Caponi, 424
dated June 4, 2007
4. Affidavit of Dennis Caponi, sworn April 13, 2015 – Fee 431
Approval and Settlement Approval
A Exhibit “A” executed Trustee Settlement Agreement, dated 439
September 17, 2014
B Exhibit “B” executed Canada Life Settlement Agreement, 449
dated January 27, 2015
C Exhibit “C” retainer agreement signed by Mr. Caponi, dated 467
June 4, 2007
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Court File No. CV-07-339254CP
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS F. CAPONI
Plaintiff
-and-
THE CANADA LIFE ASSURANCE COMPANY,
A.P. SYMONS, D. ALLEN LONEY AND JAMES R. GRANT
Defendants
Proceeding under the Class Proceedings Act, 1992
NOTICE OF MOTION FOR SETTLEMENT APPROVAL
(Returnable May 1, 2015)
THE PLAINTIFF will make a motion to the Honourable Justice Belobaba on Friday,
May 1 at 10:00 a.m., or as soon after that time as the motion can be heard, at Osgoode Hall, 130
Queen Street West, Toronto, Ontario.
PROPOSED METHOD OF HEARING: The motion shall be heard orally.
THE MOTION IS FOR:
(a)
a declaration that:
(i) the settlement between the Plaintiff and the Defendant, The Canada Life
Assurance Company ("Canada Life"), dated effective January 27,2015 is
fair, reasonable, and in the best interests of the class (the "Canada Life
Settlement Agreement); and
(iD the settlement between the Plaintiff and the Defendants, A.P. Symons, D.
Allen Loney and James R. Grant (the "Trustees"), dated September 17,
2014 is fair, reasonable, and in the best interests of the class (the "Trustee
Settlement Agreement").
.,
-L-
(Collectively "the Settlement").
(b) an order approving the Settlement pursuant to section 29 of the Class Proceedings
Act, 1992;
(c) a declaration that the Settlement is binding on the representative Plaintiff, on all
class members and on the Defendants;
(d) an order providing that the Class Proceedings Fund is entitled to:
(D
the amount of any direct financial support paid under section 59.3 of the
Law Society Act, excluding any amount repaid by the plaintiffs;
(ii) 10 per cent of the amount of the award or settlement funds, if any, to
which one or more persons in a class that included a plaintiff who received
financial support under section 59.3 of the Law Society Act is entitled, the
total of which shall be fixed by the court by further order of the court.
(e) an order approving the manner of notice of settlement approval, if granted;
(0 an order authorizing Canada Life to distribute funds in accordance with the terms
of the Canada Life Settlement Agreement;
(e) an order that certain of the disbursement costs reasonably incuned by Canada Life
through the provision of notice of the settlement approval hearing, if approved,
shall be paid out of the Settlement Fund established pursuant to the settlement
agreement with CanadaLife, up to a maximum of $10,000;
(h) an order granting judgment, in substantially the same form as the draft judgment
in schedule "B" to the Canada Life Settlement Agreement;
(i) such further and other relief as to this Honourable Court may deem just.
THE GROUNDS T'OR THE MOTION ARE:
(a) this action, brought pursuant to the Class Proceedings Act, 1992, relates to
allegations of breach of contract, breach of trust and breach of fiduciary duty in
respect of the partial wind-up of The Canada Life Canadian Supplemental
Retirement Plan (the "Supplemental Plan") as of January 31, 2005, an
unregistered pension plan;
(b) This case was certified as a class proceeding on May 11,2009;
(c) effective September 17, 2014, the plaintiff executed a settlement agreement with
the Trustees;
#*=
-3 -
(d) effective January 27,2015, the plaintiff executed a settlement agreement with
Canada Life, providing for payment to the class in exchange for releases of
Canada Life and the Trustees;
(e)
the Canada Life Settlement Agreement provides, among other terms:
(D
a settlement fund of $14,550,000, from which all costs and fees shall be
taken and the remaining funds divided pro-rata amongst the class members
based on the commuted value of their supplementary pension as of
January 31,2005;
(ii) class members with a commuted value of $0 as of January 31,2005, shall
receive a minimum payment of $1,375;
(iii) class counsel estimates that after the deduction of all fees and costs from
the Settlement Fund of $14,550,000, approximately $10,000,000 will
remain to distribute to the class members;
(iv) an anticipated distribution of $10,000,000 to the class will result in
additional payment of approximately 27-28% increase to each class
member's commuted value as of January 3I,2005, for those who had a
commuted value of greater than $0;
(f) the Settlement is fair, reasonable and in the best interests of the class;
(e) the Settlement is supported by the representative Plaintiff and recommended by
experienced class counsel;
(h) the Settlement reflects a compromise that recognizes:
(i)
the risks generally associated with litigation;
(ii) the risks of proving breach of contract which relies on a collection of
documents and not a single document;
(iiD
the risk of proving breach of trust in respect of the Trustees, which would
require a finding of "wilful wrongdoing";
(iv)
the risks of proving damages which must be proven by complex and
inherently uncertain actuarial calculations
;
(v) the risks of delays associated with the trial and attendant appeals; and
(vi) the difficulty and delay that class members could face with individual
assessment hearings, if the plaintiff was successful on the common issues
of liability, but not aggregate damages.
(i) the Settlement provides timely recovery for class members in contrast to uncertain
litigation that could take years to finally resolve;
c) the proposed compensation process is designed to fairly allocate the settlement
funds among class members and will not require claims or individual
adjudications;
rI{ iii i:
-4-
(k)
the proposed compensation process provides a balance between compensating
class members for their particular circumstances and ensuring the claims process
is efficient, timely and cost effective;
(l)
the Class Proceedings Fund approved this action for funding;
(m)
Regulation 771192 of the Law Society Act provides that the Class Proceedings
Fund is entitled to a l}Yo levy on settlement funds to which class members are
entitled;
(n)
the Closs Proceedings Act, 1992,5.O.1992, c.6;
(o)
the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
(p)
the Law Society Act, O. Reg. 771192; and
(q)
such further and other grounds as counsel may advise.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
motion:
(a)
affidavit of Jody Brown, on Settlement and Fee Approval, sworn April 15, 20151,
(b)
affidavit of Dennis Caponi, on Settlement and Fee Approval, sworn April 13,
2015;
(c)
The settlement agreements; and
(d)
such further and other material as counsel may advise and this Honourable Court
may permit.
**=
-5
April 15,2015 KOSKIE MINSKY LLP
900-20 Queen Street West
Toronto, ON M5H 3R3
Mark Zigler LSUC#: I 9 7 57 B
Tel: [phone]
Fax: [phone]
Jonathan Ptak LSUC#z 45773F
Tel:[phone]
Fax: [phone]
Jody Brown LSUC#:58844D
Tel: [phone]
Fax: [phone]
Lawyers for the Plaintiffs
TO:
BLAKE CASSELS & GRAYDON LLP
Blake, Cassels & Graydon LLP
199 Bay Street
Suite 4000
Commerce Court West
Toronto ON M5L 1A9
Jeffrey Galway
Tel: [phone]
Fax: [phone]
Solicitors for the Defendant
The Canada Life Assurance Company
AND TO: HICKS MORLEY HAMILTON
STEWART STORIE LLP
3Oth Floor
66 Wellington Street West
Toronto-Dominion Bank Tower, TD Centre
Toronto, ON M5K 1K8
John C. Field
Tel: [phone]
Fax: [phone]
Solicitors for the Defendants
A.P. Symons, D. Allen Loney and James R. Grant
Lawyers for the Defendants