In Canadian Imperial Bank of Commerce v.
Green, 2015 SCC 60 ("Green"), the
Supreme Court of Canada ("SCC") ruled on the limitation
periods for securities class actions regarding secondary market
misrepresentation, an issue that had received inconsistent
treatment at the Ontario Court of Appeal.
In Green, a five judge panel of the Court of Appeal had
reversed its previous decision in Sharma v. Timminco, 2012 ONCA 107
("Timminco"), about how limitation periods for
secondary market class actions operate. The majority of the SCC in
Green overruled the Court of Appeal's reconsideration
of the issue, favouring the previous approach in
When a class proceeding is commenced, class members have the
limitation period for their cause of action suspended under the
Class Proceedings Act, 1992 ("Class Proceedings
Act") while the certification motion is pending. This
allows class members to wait and see whether the class proceeding
will be approved and whether they would be better off opting out
and pursuing an individual action. The issue on this appeal was at
what point limitation periods are suspended for secondary market
claims under Ontario's Securities Act, given that such
claims require leave under the Act before they can proceed.
The majority decision by the SCC in Green held that on
both a plain reading and a purposive reading of the legislation,
the limitation period was not suspended under the Class
Proceedings Act until leave for the secondary market claim was
granted. This interpretation was determined by the majority to
strike the right balance between the two statutes and their
The implication is that leave to bring the secondary market
claim must be obtained within two years of the claim being
discovered. Merely commencing the action to obtain leave is not
sufficient to suspend the limitation period under the Class
Proceedings Act. As a practical matter, this would require
class counsel to move relatively quickly to obtain leave, likely
before a certification motion could be brought, despite the fact
there would normally be significant overlap between the issues on
the leave motion and those on the certification motion.
The SCC dissent in Green, on the other hand, sided with
the Ontario Court of Appeal's reconsideration of the issue,
interpreting the Class Proceedings Act as suspending the
limitation period at the time the claim is commenced, before leave
The language of the Class Proceedings Act states that
the limitation period is suspended "on the commencement of the
class proceeding". As is evident from the different views
expressed by the panels considering the legislation, the proper
interpretation was not obvious. Both the majority and the dissent
in the SCC viewed their own interpretation as consistent with a
plain reading of the statutes as well as their respective purposes.
Given the possible interpretations, it is interesting that the SCC
ultimately decided in favor of the Ontario Court of Appeal's
original interpretation in Timminco, in spite of criticism that
Notably, before the SCC released its decision in Green,
the Ontario legislature made amendments so the limitations period
under the Securities Act that governed these claims would
be suspended when a notice of motion for leave is filed. This
provides some relief to the representative plaintiffs and class
counsel in such actions.
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.
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