Ontario Court Of Appeal Overturns Itself On Limitation Periods In Securities Class Actions

On February 3, 2014 in its decision in Green v Canadian Imperial Bank of Commerce, 2014 ONCA 90, the Ontario Court of Appeal revisited its controversial decision in Sharma v Timminco, 2012 ONCA 107 [Timminco], in which the Court ruled that class actions asserting statutory claims for secondary market liability under Part XXIII.1 of the Ontario Securities Act (the "Act") are statute-barred if leave to commence such an action is not obtained within the specified three-year limitation period in the Act. In Timminco, the Court had also found that s. 28 of the Ontario Class Proceedings Act, 1992 (the "CPA") did not operate to suspend the running of that three-year limitation period until leave was obtained.

The decision in Timminco had drastic implications for securities class action plaintiffs, and in particular for three different class proceedings then before the courts: Green v Canadian Imperial Bank of Commerce, 2012 ONSC 3637 [Green], Silver v IMAX Corp., [2009] OJ No 5573 (Sup Ct J) [Silver], Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v Celestica Inc., 2012 ONSC 6083 [Trustees of the Millwright]. Each of the actions made claims both in common law negligent misrepresentation and under the Act, and each of the representative plaintiffs had issued and served their respective statements of claim within the three-year limitation period, but had not obtained leave.

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