Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Tag Archives: limitation period

The Final Word? The Ontario Court of Appeal denies nunc pro tunc relief in Pennyfeather v. Timminco

Posted in Case Comments, Class Actions, Securities

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.

Pennyfeather was previously found to be out of time in Sharma v. Timminco, 2012 ONCA 107, … Continue Reading

CIBC v. Green – Setting Limits: The Supreme Court Confirms a Robust Gatekeeper Approach to Secondary Market Liability Actions

Posted in Case Comments, Class Actions, Securities

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

Appeals to Watch in 2015: The Appeals Monitor’s Top Ten

Posted in Case Previews, Features

 

 

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.

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This Week at the SCC (31/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

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

A Costly Choice (of law): Determining the damages available for an extra-territorial tort

Posted in Case Comments, Conflict of Laws

The recent UK Supreme Court decision in Cox v Ergo Versicherung AG, [2014] 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

A little knowledge is a dangerous thing…because it calls for reasonable diligence

Posted in Case Comments, Securities

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.[1]

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 Final Word (Again?) On Limitation Periods for Securities Class Actions

Posted in Case Comments, Class Actions, Securities

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. 28Continue Reading

Correctness is “Fashionable”, But in a Bad Way: SCC broadens scope for administrative tribunals and securities commissions

Posted in Administrative, Case Comments, Securities

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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This Week at the SCC (06/12/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

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

The Second Opinion: Appeal Court Addresses Thorny Limitation Period Issues Regarding Anticipatory Breaches of Contract

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

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

Suspension Denied: ONCA Confirms that Automatic Stay Pending Appeal does not Suspend the Limitation Period

Posted in Bankruptcy and Debt, Case Comments, Procedure

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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The Second Opinion: A Trap for the Unwary – The Ontario Court of Appeal Addresses the Limitation Period for Contractual Indemnification Claims

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

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

Clock Starts with the Act of Fraud: U.S. Supreme Court Confirms Five-Year Limitation Period for Government Enforcement Proceedings

Posted in Case Comments, Securities

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.

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Time’s Up: SCC Denies Leave to Appeal in Sharma v. Timminco

Posted in Case Comments, Class Actions

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.

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The Court of Appeal Clarifies Interplay Between the Limitations Act, 2002 and the Arthur Wishart Act (Franchise Disclosure), 2000

Posted in Case Comments, Franchise and Distribution

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