In Pennyfeather v. Timminco (“Pennyfeather”), the Ontario Court of Appeal delivered yet another ruling concerning the interaction between the limitation period for obtaining leave to commence an action for misrepresentation in the secondary securities market under s. 138.14 of the Ontario Securities Act (the “OSA”), and s. 28 of the Class Proceedings Act (the “CPA”), which suspends a limitation period in favour of class members for a cause of action asserted in a class proceeding upon commencement of the class proceeding.… Continue Reading
In a much anticipated decision, the Supreme Court released its rulings in three Ontario securities class actions on December 4, 2015: Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (“Green”). This trilogy of secondary market class actions has been discussed extensively in previous postings on this blog (see this blog’s discussion of the Ontario Court of Appeal decisions, in the Top Ten Appeals to Watch in 2015 and in the SCC Monitor after the appeals were argued at the Supreme Court).… Continue Reading
I can’t predict the future and I don’t have respect for people who try to.
-Jackie Mason (1931-)
As part of the Appeals Monitor’s annual attempt to give lawyers something to talk about over the holidays other than the two traditional Canadian touchstones (weather and hockey), we are proud to once again this year present our top ten anticipated appeals for the new year. Of course, we can’t control what the judges will actually do with these cases, but we think these are the ones worth watching.
The Supreme Court of Canada this week issued a judgment in one case, granted leave to appeal in one case, and denied leave to appeal in one case of interest to Canadian businesses.
In Thibodeau v. Air Canada, 2014 SCC 67, the Supreme Court of Canada ruled that the claims of airline passengers arising from a breach of an airline’s obligation to provide services in French under the federal Official Languages Act was precluded by the Convention for the Unification of Certain Rules for International Carriage by Air.… Continue Reading
The recent UK Supreme Court decision in Cox v Ergo Versicherung AG,  UKSC 22, provides helpful commentary and a potentially persuasive precedent for Canadian courts on issues of choice of law, the distinction between substance and procedure in the conflict of laws, and legislative extraterritoriality in circumstances where a cause of action is governed by a foreign law.
Consistent with Canadian law, the UK Supreme Court held in Cox that issues of substance are governed by the law of the place where the injury was sustained, but issues of procedure must be determined by the law of the … Continue Reading
The British Columbia Court of Appeal recently released a helpful decision applying principles of discoverability to determine when a limitation period begins to run. In Roberts v. E. Sands & Associates Inc., 2014 BCCA 122, the Court rejected 650 claims against a bankrupt investment firm on the basis that these claims were made after the six-month limitation period under the Securities Act had expired.
In so doing, the Court sent a clear message to potential claimants: a limitation period will start to run when the known facts suggest the pursuit of an investigation into a cause of action … Continue Reading
The Ontario Court of Appeal’s decision in Green represents yet another plaintiff-friendly class action development from the Canadian courts, this time in the context of limitation periods. Less than two years after its watershed decision in Timminco, Ontario’s highest court reversed itself and in a decision authored by Feldman J.A. re-cast the limitation period regime governing secondary market civil liability under the Ontario Securities Act. In Green v. CIBC, 2014 ONCA 90, a five-member panel of the Court overturned Sharma v. Timminco, 2012 ONCA 107 and gave class action plaintiffs the protection of s. 28… Continue Reading
The Supreme Court of Canada has released what may be the most important administrative law appeal of the year in McLean v. British Columbia (Securities Commission), reaffirming the deference that administrative tribunals are owed when interpreting their “home” or closely related statutes and expressly seeking – as always, it seems – to foster greater “predictability and clarity”. The case represents the Court’s first return to inter-provincial securities regulation issues since the Reference re. Securities Act, 2011 SCC 66.
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The Supreme Court of Canada rendered judgment in one case likely to be of interest to Canadian business and professions.
In McLean v. British Columbia (Securities Commission), 2013 SCC 67, the Supreme Court of Canada clarified the limitation period applicable to “secondary proceedings” in the context of securities enforcement.… Continue Reading
When does the limitation period begin to run for an anticipatory breach of contract? Does the limitation period commence as soon as the guilty party indicates that it will breach a future obligation? Or can the innocent party safely assume that that the limitation period does not run until the time comes for the performance of the contract and the guilty party then in fact fails to perform its obligation? A recent decision by the Ontario of Court of Appeal brings much needed clarity to this important issue.… Continue Reading
The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 (“msi Spergel”) confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the “Limitations Act”) unless there is express statutory authority to do so.
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Imagine the following scenario. Party A contractually agrees to indemnify Party B against claims by third parties. Both Party A and Party B are then sued by Party C. Party B settles the claim with Party C and then seeks indemnification from Party A. Party A refuses to indemnify Party B. What limitation period applies to party B’s contractual indemnification claim against Party A? Does the general limitation period for breach of contract apply? Or does the special regime for contribution and indemnity claims apply? The Ontario Court of Appeal ruled in a very recent decision that the latter regime, … Continue Reading
The US Supreme Court recently handed the US Securities and Exchange Commission (the “SEC”) a very clear message: the act of fraud – not its discovery – triggers the start of the limitation period in government enforcement proceedings.
Chief Justice Roberts’ unanimous decision in Gabelli et al v. Securities and Exchange Commission gave a strict reading to the five-year statutory limitation period for initiating civil penalty proceedings. In so doing, the Court flatly rejected the SEC’s argument that it is only the discovery of fraud which starts the clock ticking.
In an important new ruling with national implications, the Supreme Court of Canada has denied leave to appeal from the Ontario Court of Appeal’s watershed decision in Sharma v. Timminco Limited, thereby establishing Sharma as the governing law for the statutory limitation period for secondary market securities class actions in Ontario, and possibly throughout Canada. Read together with Justice Strathy’s recent decision in Green v. Canadian Imperial Bank of Commerce, these decisions are likely to impose a new regime upon the conduct of secondary market class actions.
In 2130489 Ontario Inc. v. Philthy McNasty’s (Enterprises) Inc., the Ontario Court of Appeal (ONCA) clarified how the limitation period in the Limitations Act, 2002 (Limitations Act) interacts with the time periods for rescission set out in the Arthur Wishart Act (Franchise Disclosure), 2000 (Act).
According to the Court, where a franchisee seeks access to the courts to enforce its statutory rescission rights under the Act, the general two-year limitation period set out in the Limitations Act will only be triggered once the franchisee “discovers” that the franchisor does not intend to comply with the financial obligations set … Continue Reading