



COURT OF APPEAL FOR ONTARIO

CITATION:
Drywall
    Acoustic Lathing and Insulation, Local 675 Pension Fund v. Barrick Gold
    Corporation, 2021 ONCA 596

DATE: 20210901

DOCKET: C67681

Hoy, Brown and Thorburn JJ.A.

BETWEEN

The Trustees of the
    Drywall Acoustic Lathing and Insulation Local

675 Pension Fund and Royce Lee

Plaintiffs (Appellants)

and

Barrick Gold Corporation,
    Aaron W. Regent, Jamie C. Sokalsky,

Ammar Al-Joundi and Peter
    Kinver

Defendants (Respondents)

Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi,
    for the appellants

Kent E. Thomson, Luis Sarabia and Steven G. Frankel, for
    the respondents

Heard: November 9 and 10, 2020 by video conference, with further
    written submissions filed on November 23, 2020.

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated October 9, 2019, with reasons reported at 2019
    ONSC 4160, 148 O.R. (3d) 755.

COSTS ENDORSEMENT

[1]

In reasons released on February 19, 2021, the court ordered that if the
    parties were unable to agree on costs of the appeal and the motion below, the
    appellants shall make written submissions not exceeding five pages within 14
    days of release of the reasons, and the respondents shall make written
    submissions not exceeding five pages within 10 days after the appellants make
    their submissions.

[2]

In a letter to the Registrar of the court dated August 16, 2021, which
    was forwarded to the panel, counsel for the appellants inquired about the
    panels disposition of the costs of the appeal and motion below and provided
    copies of the costs submissions which counsel advised had filed been with the
    court on March 5, 2021 (appellants) and March 15, 2021 (respondents).

[3]

Regrettably, through administrative oversight, those costs submissions
    had not been previously provided to the panel, and the panel assumed that the
    parties had agreed on costs.

[4]

The panel has now reviewed the costs submissions included with
    appellants counsels letter.

[5]

The motion judge, Belobaba J., denied the appellants leave to proceed
    under s. 138.3 of the Ontario
Securities Act
, R.S.O. 1990, c. S.5 in
    respect of the categories of alleged misrepresentations described in the
    courts reasons as the capex and scheduling misrepresentations and
    the accounting and financial reporting misrepresentations
    (collectively, the alleged financial misrepresentations). Whether he erred in
    principle in so doing was the primary issue on appeal.

[6]

The motion judge granted leave to the appellants to proceed with what he
    characterized as their core environmental claim but denied leave with respect
    to four alleged misrepresentations by omission with respect to environmental
    compliance. We agree with the motion judges characterization of the
    environmental claim in respect of which he granted leave as the appellants
    core environmental claim. The respondents did not cross-appeal the motion
    judges grant of leave with respect to the core environmental claim.

[7]

The court concluded that the motion judge erred in principle in denying leave
    in respect of the alleged financial misrepresentations and returned the issue
    of whether leave should be granted in respect of them to the court below, to be
    determined by a judge selected by the administrative judge of the class actions
    team in Toronto. The parties advise that Akbarali J. has been selected to
    determine whether leave should be granted in respect of the alleged financial
    misrepresentations.

[8]

As to the secondary issue on appeal, the court concluded that there was
    no basis for it to interfere with the motion judges denial of leave to proceed
    with the four alleged misrepresentations by omission with respect to
    environmental compliance.

[9]

The parties agreed that costs of the appeal in the amount of $60,000,
    all inclusive, would be awarded to the successful party on the appeal. The
    appellants succeeded on the central issue before the court. They were
    substantially successful. Accordingly, they are entitled to costs of the appeal
    in the amount of $60,000, all inclusive.

[10]

The appellant brought one motion for leave to proceed. The motion
    judge awarded no costs of the motion on the basis that success was divided. The
    costs of both portions of the motion for leave shall be determined by Akbarali
    J. once she has determined whether to grant leave in respect of the alleged
    financial misrepresentations and the overall outcome of the motion is known.

Alexandra Hoy J.A.

David Brown J.A.

J.A. Thorburn J.A.


