135 (1) Upon application by the Commission or by any person or company who was at the time of a transaction referred to in subsection 134 (1) or (2) or is at the time of the application a security holder of the reporting issuer, a judge of the Superior Court of Justice may, if satisfied that, (a) the Commission or the person or company has reasonable grounds for believing that the reporting issuer has a cause of action under subsection 134 (4); and (b) either, (i) the reporting issuer has refused or failed to commence an action under section 134 within sixty days after receipt of a written request from the Commission or such person or company so to do, or (ii) the reporting issuer has failed to prosecute diligently an action commenced by it under section 134, make an order, upon such terms as to security for costs and otherwise as to the judge seems fit, requiring the Commission or authorizing such person or company or the Commission to commence or continue an action in the name of and on behalf of the reporting issuer to enforce the liability created by subsection 134 (4).  R.S.O. 1990, c. S.5, s. 135 (1); 2006, c. 19, Sched. C, s. 1 (1). Action by Commission on behalf of mutual fund (2) Upon the application by the Commission or any person or company who was at the time of a transaction referred to in subsection 134 (3) or is at the time of the application a security holder of the mutual fund, a judge of the Superior Court of Justice may, if satisfied that, (a) the Commission or the person or company has reasonable grounds for believing that the mutual fund has a cause of action under subsection 134 (3); and (b) the mutual fund has either, (i) refused or failed to commence an action under subsection 134 (3) within sixty days after receipt of a written request from the Commission or the person or company so to do, or (ii) failed to prosecute diligently an action commenced by it under subsection 134 (3), make an order, upon terms as to security for costs or otherwise as to the judge seems proper, requiring the Commission or authorizing the person or company or the Commission to commence and prosecute or to continue an action in the name of and on behalf of the mutual fund to enforce the liability created by subsection 134 (3).  R.S.O. 1990, c. S.5, s. 135 (2); 2006, c. 19, Sched. C, s. 1 (1). Costs (3) Where an action under subsection 134 (3), (3.1) or (4) is, (a) commenced; (b) commenced and prosecuted; or (c) continued, by a board of directors of a reporting issuer, the trial judge or, on motion to the Superior Court of Justice, a judge of the Court may order that the costs properly incurred by the board of directors in commencing, commencing and prosecuting or continuing the action, as the case may be, shall be paid by the reporting issuer, if the judge is satisfied that there were apparent grounds for believing the action was in the best interests of the reporting issuer and the security holders thereof.  R.S.O. 1990, c. S.5, s. 135 (3); 2006, c. 19, Sched. C, s. 1 (1); 2009, c. 18, Sched. 26, s. 18 (1). Action by Commission on behalf of security holder of the reporting issuer (4) Where an action under subsection 134 (3), (3.1) or (4) is, (a) commenced; (b) commenced and prosecuted; or (c) continued, by a person or company who is a security holder of the reporting issuer, the trial judge or, on motion to the Superior Court of Justice, a judge of the Court may order that the costs properly incurred by such person or company in commencing, commencing and prosecuting or continuing the action, as the case may be, shall be paid by the reporting issuer, if the judge is satisfied that, (d) the reporting issuer failed to commence the action or had commenced it but had failed to prosecute it diligently; and (e) there are apparent grounds for believing that the continuance of the action is in the best interests of the reporting issuer and the security holders thereof.  R.S.O. 1990, c. S.5, s. 135 (4); 2006, c. 19, Sched. C, s. 1 (1); 2009, c. 18, Sched. 26, s. 18 (2). Idem (5) Where an action under subsection 134 (3), (3.1) or (4) is, (a) commenced; (b) commenced and prosecuted; or (c) continued, by the Commission, the trial judge or, on motion to the Superior Court of Justice, a judge of the Court shall order the reporting issuer to pay all costs properly incurred by the Commission in commencing, commencing and prosecuting or continuing the action, as the case may be.  R.S.O. 1990, c. S.5, s. 135 (5); 2006, c. 19, Sched. C, s. 1 (1); 2009, c. 18, Sched. 26, s. 18 (3). Idem (6) In determining whether there are apparent grounds for believing that an action or its continuance is in the best interests of a reporting issuer and the security holders thereof, the judge shall consider the relationship between the potential benefit to be derived from the action by the reporting issuer and the security holders thereof and the cost involved in the prosecution of the action.  R.S.O. 1990, c. S.5, s. 135 (6). Notice of application (7) Notice of every application under subsection (1) or (2) shall be given to the Commission, the reporting issuer or the mutual fund, as the case may be, and each of them may appear and be heard thereon.  R.S.O. 1990, c. S.5, s. 135 (7). Order to co-operate (8) Every order made under subsection (1) or (2) requiring or authorizing the Commission to commence and prosecute or continue an action shall provide that the reporting issuer or mutual fund, as the case may be, shall co-operate fully with the Commission in the commencement and prosecution or continuation of the action, and shall make available to the Commission all books, records, documents and other material or information known to the reporting issuer or mutual fund or reasonably ascertainable by the reporting issuer or mutual fund relevant to such action.  R.S.O. 1990, c. S.5, s. 135 (8). Appeal (9) An appeal lies to the Divisional Court from any order made under this section.  R.S.O. 1990, c. S.5, s. 135 (9). Section Amendments with date in force (d/m/y) 2006, c. 19, Sched. C, s. 1 (1) - 22/06/2006 2009, c. 18, Sched. 26, s. 18 (1-3) - 28/09/2009