Canada: IMAX Securities Class Action Saved By Nunc Pro Tunc Order

Last Updated: September 5 2012
Article by Dan Murdoch

In a decision released August 27, 2012 in the Silver v. IMAX securities class action, Justice van Rensburg has ordered that leave to commence an action under Part XXIII.1 of the Ontario Securities Act (the OSA), which she previously granted in a decision released December 14, 2009, shall be deemed effective as of December 19, 2008, the last day of the original hearing of the leave motion. The purpose of this Order is to address the expiry of the limitation period to commence an action under Part XXIII.1 while the leave motion was under reserve. 

Justice van Rensburg has taken an expansive view of the Court's inherent jurisdiction to remedy a perceived injustice in the limitation period set out in the OSA for secondary market securities class actions. This decision in IMAX contrasts with the recent decision in Green v. CIBC where, in similar circumstances, Justice Strathy applied the Court of Appeal's recent decision in Sharma v. Timminco Limited to deny a motion for leave to commence a Part XXIII.1 action on the grounds that the limitation period had expired. While there is a basis, set out below, for distinguishing the IMAX and CIBC decisions, it may be necessary for a higher court to consider the scope, if any, of the Court's inherent jurisdiction to circumvent the limitation period set out in the OSA.

For securities class actions involving claims of misrepresentation in public disclosure documents, section 138.14 of the OSA provides that such an action must be commenced within three (3) years of the alleged misrepresentations. In IMAX, the limitation period expired in March 2009. In February 2012, the Court of Appeal released a decision in the Timminco securities class action which found that the limitation period in section 138.14 of the OSA is not suspended by section 28 of the Class Proceedings Act, 1992 (the CPA), which suspends limitation periods on behalf of class members on the commencement of a class proceeding, until a proposed representative plaintiff obtains leave from the Court pursuant to section 138.8 of the OSA and, with leave, commences an action under section 138.3 of the OSA.

IMAX was the first action under Part XXIII.1 to proceed to a hearing on the leave motion. The plaintiff issued a Statement of Claim on September 20, 2006, alleging misrepresentations by IMAX during the period February 17, 2006 to March 9, 2006. The leave motion, as well as a certification motion, was heard in December 2008. The Court's decision was not released until a year later, in December 2009. It would appear that the issue of the limitation period was not addressed by the parties or the judge at any point in the proceeding.

After the release of the Court of Appeal's decision in Timminco, the defendants amended their Statement of Defence to plead that the Part XXIII.1 claims were statute barred by section 138.14 of the OSA because the Amended Statement of Claim pleading the Part XXIII.1 cause of action was first issued, with leave, more than three (3) years after the alleged misrepresentations. The defendants moved for summary judgment on this ground. The plaintiffs, in turn, moved for an order that leave be granted nunc pro tunc, "now for then", meaning that the granting of leave to commence the Part XXIII.1 action would be retroactive to some date prior to the expiry of the limitation period.

A very similar issue arose in the CIBC securities class action, where Justice Strathy concluded that he did not have the authority to grant leave nunc pro tunc and, finding it had no reasonable possibility of success, he denied the motion for leave to commence the Part XXIII.1 action. One notable difference between the IMAX and CIBC proceedings is that the leave motion in IMAX was heard prior to the expiry of the limitation period whereas in CIBC the hearing of the leave motion was after the expiry of the limitation period, Justice van Rensburg nevertheless acknowledges that she is taking a "more expansive" view than Justice Strathy of the Court's authority to grant orders nunc pro tunc.

Justice van Rensburg concluded that her authority to grant orders nunc pro tunc is based on the Court's inherent jurisdiction to prevent injustice generally. In particular, she concluded that the doctrine of actus curiae neminem gravabit, meaning that a litigant should not be prejudiced by the conduct of the Court, justified granting leave nunc pro tunc in this case because the limitation period expired after the motion was heard and while the decision was under reserve. The actus curiae doctrine would appear not to apply in the CIBC proceeding as the leave motion was heard after the expiry of the limitation period, or for that matter, in the Timminco proceeding, in which the leave motion was not even served until after the expiry of the limitation period.

A further hurdle remained to address the expiry of the limitation period in IMAX. Typically the event that suspends a limitation period is not the fact that leave is granted but the actual issuance of a Statement of Claim. Justice van Rensburg concluded that the Court of Appeal's decision in Timminco suggests that, where a Statement of Claim has already been issued stating an intention to seek leave to commence an action under Part XXIII.1, section 28 of the CPA suspends the limitation period in section 138.14 of the OSA upon the granted of leave and it is not necessary to issue a Statement of Claim actually asserting the Part XXIII.1 cause of action in order to suspend the limitation period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.