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Summary

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Limitation of actions - Legislation - Interpretation - Civil procedure - Class actions - Securities - Statutory claim - Statement of claim in proposed class action indicating that plaintiffs will seek order granting leave to assert statutory cause of action for misrepresentation provided by s. 138.3 of Part XXIII.1 of Ontario Securities Act - Leave motion brought after expiry of three-year limitation period set out in s. 138.14 of Securities Act - Whether Court of Appeal erred in concluding that the test for overturning Sharma v. Timminco, 2012 ONCA 107, had been satisfied - Whether Court of Appeal erred in its determination as to when the statutory limitation period under Part XXIII.1 stopped running - Whether the special circumstances doctrine is available to relieve the plaintiffs from compliance with the Part XXIII.1 limitation period - Securities Act, R.S.O. 1990, c. S.5, ss. 138.3, 138.8, 138.14 - Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 28.

In this class action proceeding, the representative plaintiffs are claiming damages under Part XXIII.1 of the Ontario Securities Act (“OSA”) for misrepresentations alleged to have been made in respect of shares trading in the secondary market. In addition to common law negligent misrepresentation claims, they make a claim based on the new statutory cause of action found at s. 138.3 of the OSA, which can only be commenced with leave of the court and is subject to a three-year limitation period. The plaintiffs brought a motion seeking leave beyond the three-year limitation period. On motion by the defendants to strike the statutory claims as being time-barred in view of the Ontario Court of Appeal’s 2012 decision in Sharma v. Timminco, 2012 ONCA 107, the motions judge held that there were special circumstances justifying an order granting leave nunc pro tunc despite the expiry of the limitation period. On appeal by the defendants, a five-judge panel of the Court of Appeal concluded that the decision in Timminco should be overturned, and therefore that the action was not statute-barred.

Lower Court Rulings