A broad and expansive approach the Court's inherent
jurisdiction to do justice between parties by granting orders
nunc pro tunc (or with retroactive effect) formed the
basis of Justice van Rensburg's decision in favour of the
plaintiffs in Silver v. Imax1 to address the
expiry of a limitation period to commence an action under Part
XXIII.1 of the Ontario Securities Act (the
"OSA") while the motion for leave was under
In Silver v. Imax, Imax brought a motion to dismiss the
plaintiffs' claims for secondary market misrepresentation on
the ground that it was statute-barred under section 138.14 of the
OSA. In accordance with section 138.14 of the
OSA, claims for misrepresentations in public disclosure
documents must be commenced within three (3) years of the alleged
misrepresentations. In accordance with section 138.8 of the
OSA, no action may be commenced under section 138.3 of the
OSA without leave of the court.
Imax argued that the alleged misrepresentations to the secondary
market were made between February 17 and March 9, 2006, and
although the Statement of Claim pleaded that the plaintiffs
intended to bring a motion for an order to seek leave to proceed
with the statutory misrepresentation claims and such motion was
brought and heard within the limitation period, leave was granted
and the Amended Statement of Claim was issued more than three years
after the alleged misrepresentations. Notably, Silver v.
Imax was the first action under Part XXIII.1 of the
OSA to proceed to a hearing on the leave motion.
Justice van Rensburg's decision to dismiss Imax's motion
and amend nunc pro tunc the order granting leave under
section 138.8 of the OSA stands in contrast to the recent decisions
Sharma v. Timminco Limited2 and Green v.
CIBC3, which applied a stricter approach to the
statutory limitation period.
In Sharma v. Timminco Limited, the Court of Appeal held
that the limitation period in section 138.14 of the OSA is
not suspended by section 28 of the Class Proceedings Act,
1992. In Bell v. CIBC, Strathy J. dismissed a motion
for leave under section 138.8 of the OSA when the motion
was argued after the limitation period had already expired. While
recognizing the unfairness in the result, Strathy J. considered
himself bound by the decision in Sharma v. Timminco
Limited to dismiss the action for statutory secondary market
Justice van Rensburg, however, held that the court is not
precluded from granting nunc pro tunc relief when dealing
with the limitation period under section 138.14 of the
OSA. Justice van Rensburg noted that unlike the
situation in Sharma v. Timminco Limited, the plaintiffs
moved expeditiously to advance the motion for leave and there was
nothing more that the plaintiffs could have done to comply with the
limitation period. Further, Justice van Rensburg noted that a
"material difference" between Green v. CIBC and
Silver v. Imax was that the limitation period in Green
v. CIBC had already expired when the motion for leave was
argued, whereas the limitation period in Silver v. Imax
expired while the decision on the leave application was under
reserve. Justice van Rensburg noted that in any event, her Honour
would nevertheless take a more expansive approach to the
court's authority to grant orders nunc pro tunc and
reasoned that the ability of the court to make an order nunc
pro tunc ensures that the rights of the parties will not be
impacted arbitrarily by the court's schedule. According to
Justice van Rensburg, "no public interest would be served by
permitting a cause of action to be defeated by delays inherent in
the litigation process".
In appropriate circumstances, Silver v. Imax provides a
limited foundation for plaintiffs to attempt to overcome impact of
the statutory limitation period in the OSA and distinguish
their cases from other recent decisions that have applied a
stricter approach to limitation periods to secondary market
misrepresentation claims. An appeal of Justice van Rensburg's
decision, however, would not be surprising given other recent
decisions that have provided defendants with cause for optimism
that the courts are developing a restrictive approach to securities
1 2012 ONSC 4881
2 2012 ONCA 107
3 2012 ONSC 3637
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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