Less than one month after the Supreme Court of Canada announced
that it will hear appeals in a trilogy of Ontario securities class
action cases that address how the three years limitation period
under the Ontario Securities Act applicable to secondary
market class actions should be applied, the Ontario Legislature has
taken it upon itself to clarify the matter going forward.
In 2012, the Ontario Court of Appeal had interpreted the
statutory limitation period to mean that plaintiffs must have
obtained leave from the court to commence the action within the
three-year period (Sharma v Timminco). Earlier this year,
in Green v CIBC, a rare five-judge panel of the Court of
Appeal reversed its own decision in Timminco (with two
companion decisions in Silver v IMAX and Celestica v
Millwright). The Court of Appeal found that articulating an
intention to seek leave to commence the secondary market claim
under the Securities Act was sufficient to suspend the
limitation period, even though leave had not yet been granted to
commence such an action. It was the defendants in this trilogy of
cases that were granted leave to appeal to the Supreme Court of
Without any fanfare, section 138.14 of the Securities
Act was amended as part of the Government's recent budget
bill. The section now provides that the limitation period is
suspended on the date a notice of motion for leave to commence the
action is filed with the Court. This requires more than the Court
of Appeal had required in Green v CIBC, but less than had
been held to be required in Timminco.
Whether the Supreme Court now deals with this issue remains to
be seen, as the legislative amendment likely is not retroactive.
The strict three-year limitation period made sense from a policy
point of view – companies should have certainty and not have
to operate under the cloud of a threatened proceeding. And three
years is ample time to get a leave motion heard and decided by a
court. But the Legislature has spoken.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).