The Supreme Court of Canada has granted leave to appeal in a case that will
determine how to apply the statutory limitation period for
investors in Ontario who decide to sue public issuers and their
executives under the Securities Act. Given
similar legislation in other provinces, the case will be
significant for investors and public issuers across Canada.
At issue is the February 2014 decision of a 5-member panel of
the Ontario Court of Appeal covering three cases with different
fact situations: Green v. CIBC, 2012 ONSC 3637; Silver v.
IMAX, 2012 ONSC 4881; and Millwright
Regional Council of Ontario Pension Trust Fund (Trustees of) v.
Celestica Inc., 2012 ONSC 6083, each brought under Part
XXIII.1 of the Ontario Securities Act. The Court of
Appeal decision – 2014 ONCA 90 – was a dramatic and
unusual reversal of its own decision on the same issue in
Sharma v. Timminco, 2012 ONCA 107, less than two years prior.
As discussed in a
blog post earlier this year, the three appeals at issue in
Green required the Court of Appeal to decide when an
investor advancing a proposed securities class action can be
properly said to have "commenced" a claim, thus stopping
the limitations period. In Green, the Court held
that investors enjoyed the benefit of the limitation period
suspension under s. 138.14 of the Securities Act once they
have issued a common law claim and also pleaded an intention to
seek leave to plead the statutory cause of action, even if leave is
not then granted within the limitation period. This is in
contrast to Timminco (
also discussed in an earlier post), in which the Court had held
that leave must be granted within the three-year limitations
period, or the claim was statute-barred.
The three claims giving rise to this appeal were each issued and
served within the three-year limitation period, but leave was not
granted within that timeframe. Motions judges had taken a different
approach in each case in applying the statutory limitation period,
which ultimately led the Court of Appeal to revisit its
Between the Court of Appeal's decisions in Timminco
and Green, the Ontario government announced that it was
monitoring "current cases" and would consider amending
the Securities Act limitation provisions if needed. Many
observers were surprised to see the Court of Appeal reversing its
own recent decision, rather than allowing the legislature to
revisit the statutory framework if it deemed it necessary. It will
be interesting to see what the Supreme Court says not only about
the proper application of the limitation period in Securities
Act cases, but how it addresses the Court of Appeal's
departure from its own recent precedent.
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.
While most are well aware that the sale of a business is generally a complex process, even sophisticated business owners are surprised by just how much cost and effort is required to complete the sale.
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).