market the existence of the alleged misrepresentation” (Swisscanto,
at para. 65), while at the same time, perpetuating the misrepresentation that the investment was unauthorized. I find that the
Theratechnologies test has been met. I grant leave to Kauf to
proceed with the Public Correction Issue.
Order and Costs
 For the above reasons, I grant leave to proceed to Kauf
against the Defendants under s. 138.8(1) on the misrepresenta-
tion claims set out at paras. 8 and 9 above, as well as leave to pro-
ceed on the Jaffrey Knowledge Issue and the Public Correction
 If the parties are unable to agree on costs, Kauf shall
deliver a costs submission of no more than five pages (not including
the costs outline) by April 19, 2019. Each of the Colt Defendants,
Jaffrey, and Perrault shall deliver responding costs submissions of
no more than five pages (not including the costs outline) by May
3, 2019. Kauf may deliver a reply costs submission of no more
than five pages by May 10, 2019 to collectively address the
responding costs submissions of the Defendants.
Almalki et al. v. The Attorney General of Canada et al.
[Indexed as: Almalki v. Canada (Attorney General)]
2019 ONCA 26
Court of Appeal for Ontario, Doherty, D.M. Miller and Paciocco JJ.A.
January 17, 2019
Professions — Barristers and solicitors — Fees — Contingency fee —
Contingency fee agreement providing that clients would join in application by solicitors under s. 28.1(8) of Solicitors Act for court approval of
inclusion in fee payable to solicitors of percentage of amount paid to
clients for legal costs — Motion judge correctly interpreting that provision as precluding clients from refusing to join in application on basis
that “exceptional circumstances” did not exist — Provision not unenforceable on basis that it was contrary to s. 28.1(8) — Solicitors Act, R.S.O.
1990, c. S.15, s. 28.1(8).
The solicitors and clients entered into a contingency fee agreement which
provided for the possibility of the solicitors applying to the court under s. 28.1(8)
of the Solicitors Act for approval of the inclusion in the fee payable to them of
a percentage of any amount paid to the clients for their legal costs, and required
the clients to join in that application (paras. 15 and 16). The action was settled.
The solicitors brought a motion for an order approving the settlement as it