Green v. Canadian Imperial Bank of Commerce,

• Jurisdiction: Ontario
• Judge: Doherty, Feldman, Cronk, Blair and Juriansz, JJ.A.
• Neutral Citation: 2014 ONCA 90
• Citation: 2014 ONCA 90,(2014), 314 O.A.C. 315 (CA),118 OR (3d) 641,370 DLR (4th) 402,[2014] CarswellOnt 1143,[2014] OJ No 419 (QL),314 OAC 315,50 CPC (7th) 113,314 O.A.C. 315,[2014] O.J. No 419 (QL),118 O.R. (3d) 641,370 D.L.R. (4th) 402,(2014), 314 OAC 315 (CA)
• Date: 03 February 2014
• Court: Court of Appeal (Ontario)

Green v. CIBC (2014), 314 O.A.C. 315 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.005

Howard Green and Anne Bell (plaintiffs/appellants) v. Canadian Imperial Bank of Commerce, Gerald McCaughey, Tom Woods, Brian G. Shaw, and Ken Kilgour (defendants/respondents)

(C55832)

Marvin Neil Silver and Cliff Cohen (plaintiffs/respondents) v. IMAX Corporation, Richard L. Gelfond, Bradley J. Wechsler, Francis T. Joyce, Neil S. Braun, Kenneth G. Copland, Garth M. Girvan, David W. Leebron and Kathryn A. Gamble (respondents/appellants)

(C55982)

Trustees of the Millwright Regional Council of Ontario Pension Trust Fund (plaintiffs/respondents) v. Celestica Inc., Stephen W. Delaney and Anthony P. Puppi (defendants/appellants)

Nabil Berzi (plaintiffs/respondents) v. Celestica Inc., Stephen W. Delaney and Anthony P. Puppi (defendants/appellants)

Huacheng Xing (plaintiffs/respondents) v. Celestica Inc., Stephen W. Delaney and Anthony P. Puppi (defendants/appellants)

(C56252; 2014 ONCA 90)

Indexed As: Green et al. v. Canadian Imperial Bank of Commerce et al.

Ontario Court of Appeal

Doherty, Feldman, Cronk, Blair and Juriansz, JJ.A.

February 3, 2014.

Summary:

In three separate class actions, the representative plaintiffs claimed damages under the common law and under s. 138.3 of the Securities Act for misrepresentation respecting shares trading in the secondary market. In each case, the statement of claim was issued and served within the three year limitation period for bringing the statutory claim (s. 138.14), but leave to commence the statutory claim (s. 138.8) was not obtained within the three year period. In Sharma v. Timminco Ltd. et al. (2012), 289 O.A.C. 19 (C.A.), the court held that the statutory claim was barred if leave to commence the claim was not obtained within the three year period. In the first action ([2012] O.T.C. Uned. 3637), the court held that it was bound by Sharma and there was no relief from the expiration of the limitation period. In the second action ([2012] O.T.C. Uned. 4881), the court held that the leave that had been granted to commence the action applied nunc pro tunc within the limitation period. In the third action, the court held that leave could be granted after the expiry of the limitation period by applying the doctrine of special circumstances. All three decisions were appealed. The appeals were heard together by a five-judge panel of the court to allow the court to decide whether to reconsider the decision in Sharma.

The Ontario Court of Appeal reconsidered Sharma and overruled it. In the first action, the order dismissing the class action as statute-barred was set aside. In the second and third actions, the court confirmed that the actions were not statute-barred by Sharma.

Courts - Topic 77

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Reconsideration - [See Courts - Topic 90.3 ].

Courts - Topic 90.3

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Prior wrong decision and whether error should be perpetuated (communis error facit jus) - The Ontario Court of Appeal referred to the circumstances when it would revisit and overrule a previous decision of the court - The court stated the "Previously, some judgments of this court had taken a more rigid approach, requiring errors to fit within one of the traditional exceptions to stare decisis" - The court stated that it could overrule a prior decision that misinterpreted a statute regardless of whether the type of error fit into one of the traditional exceptions - The approach was to focus "on the nature of the error, and the effect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system" - See paragraph 15.

Limitation of Actions - Topic 4403

Statutory causes of action - When time begins to run (incl. suspension) - [See Securities Regulation - Topic 5 ].

Practice - Topic 8871

Appeals - Leave to appeal - Application for - [See Securities Regulation - Topic 5 ].

Practice - Topic 8871.2

Appeals - Leave to appeal - Whether required (incl. extension of time for determining) - [See Securities Regulation - Topic 5 ].

Securities Regulation - Topic 5

General principles - Civil action for breach of statute - Section 138.3 of the Securities Act authorized a civil action for misrepresentation if commenced within three years of the misrepresentation being made (s. 138.14) - Section 13.8 required that leave to commence the claim be obtained within that three year limitation period - Section 28 of the Class Proceedings Act provided that any limitation period applicable to "a cause of action asserted in a class proceeding" was suspended on the commencement of the class proceeding - Three class actions were commenced within the limitation period (statements of claim filed and served), but leave was never obtained - In Sharma v. Timminco Ltd. et al. (2012), 289 O.A.C. 19 (C.A.), it was held that a statutory claim was barred if leave to commence the claim was not obtained within the three year period (i.e., running of the limitation period not suspended under s. 28 as no caused of action was "asserted") - The Ontario Court of Appeal reconsidered Sharma and overruled it - The court held that "when a representative plaintiff in a class action brought within the Securities Act s. 138.14 limitation period, also pleads a cause of action based on s. 138.3 of the Securities Act, together with the facts that found the claim, and further pleads the intent to seek leave to commence an action under the Securities Act, then that claim has been 'asserted' for the purpose of s. 28 of the [Class Proceedings Act], and the limitation period is thereby suspended for all class members" - The court found it unnecessary to decide, on the facts of this case, whether leave to commence a claim under s.138.8 could be obtained, after the action was commenced, in an order that was made nunc pro tunc - See paragraphs 1 to 78.

Cases Noticed:

Sharma v. Timminco Ltd. et al. (2012), 289 O.A.C. 19; 109 O.R.(3d) 569; 2012 ONCA 107, leave to appeal denied (2012), 438 N.R. 400 (S.C.C.), overruled [para. 3].

L.C. v. Grenville Christian College et al. (2013), 304 O.A.C. 163; 2013 ONCA 139, refd to. [para. 7, footnote 1].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161 (C.A.), refd to. [para. 15].

Logan v. Canada (Minister of Health) et al., [2003] O.T.C. 118; 36 C.P.C.(5th) 176 (Sup. Ct.), affd. (2004), 188 O.A.C. 294; 71 O.R.(3d) 451 (C.A.), refd to. [para. 30].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 47].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 47].

Coulson v. Citigroup Global Markets Canada Inc. et al. (2010), 92 C.P.C.(6th) 301; 2010 ONSC 1596, affd. (2012), 288 O.A.C. 355; 2012 ONCA 108, refd to. [para. 57].

New Alger Mines Ltd. v. Thorne Riddell Inc. (1986), 14 O.A.C. 25; 54 O.R.(2d) 562 (C.A.), refd to. [para. 59].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 29 O.R.(3d) 577 (C.A.), refd to. [para. 76].

Arora et al. v. Whirlpool Canada LP et al. (2013), 311 O.A.C. 203; 2013 ONCA 657, refd to. [para. 85].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 86].

Dobbie et al. v. Arctic Glacier Income Fund et al., [2011] O.T.C. Uned. 25; 3 C.P.C.(7th) 261; 2011 ONSC 25, refd to. [para. 90].

Zaniewicz et al. v. Zungui Haixi Corp. et al., [2012] O.T.C. Uned. 6061; 2012 ONSC 6061, refd to. [para. 90].

McKenna v. Gammon Gold Inc. et al., [2010] O.T.C. Uned. 1591; 2010 ONSC 1591, refd to. [para. 97].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2011] 2 S.C.R. 175; 416 N.R. 1; 306 B.C.A.C. 1; 516 W.A.C. 1; 2011 SCC 23, refd to. [para. 97].

Cannon v. Funds for Canada Foundation et al., [2012] O.T.C. Uned. 3009; 2012 ONSC 3009, refd to. [para. 100].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 104].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 28 [para. 20].

Securities Act, R.S.O. 1990, c. S-5, sect. 138.8(1) [para. 18]; sect. 138.14 [para. 14, footnote 2].

Authors and Works Noticed:

Ontario, 2013 Budget, A Prosperous and Fair Ontario (2013), p. 290 [para. 72].

Ontario, Attorney General's Advisory Committee on Class Action Reform, Report of (1990), generally [para. 30].

Ontario, Law Reform Commission, Report on Class Actions (1982), p. 771 [para. 29].

Toronto Stock Exchange, Final Report: Responsible Corporate Disclosure: A Search for Balance (1997), para. 4.6 [para. 38].

Counsel:

R. Paul Steep and Dana M. Peebles, for the appellants, IMAX Corporation, Richard L. Gelfond, Bradley J. Wechsler, Francis J. Joyce, Neil S. Braun, Kenneth G. Copland, Garth M. Girvan, David W. Leebron and Kathryn A. Gamble;

William V. Sasso, A. Dimitri Lascaris, Serge Kalloghlian and Daniel E. Bach, for the respondents, Marvin Neil Silver and Cliff Cohen;

Joel P. Rochon, Peter R. Jervis, Sakie Tambakos, John Archibald and Remissa Hirji, for the appellants, Howard Green and Anne Bell;

James C. Tory and Sheila Block, for the respondent, Canadian Imperial Bank of Commerce;

Benjamin Zarnett and David Conklin, for the respondents, Gerald McCaughey, Tom Woods, Brian G. Shaw, and Ken Kilgour;

Nigel Campbell and Ryan A. Morris, for the appellants, Celestica Inc., Stephen W. Delaney and Anthony P. Puppi;

Kirk M. Baert, Celeste Poltak, Michael Mazzuca, Peter Prozanski and Trent Morris, for the respondents, Trustees of the Millwright Regional Council of Ontario Pension Trust Fund, Nabil Berzi, Huacheng Xing;

Anna Perschy, for the intervenor, Ontario Securities Commission;

Alan L.W. D'Silva, Mark E. Walli and Lesley Mercer, for the intervener, Insurance Bureau of Canada;

Margaret L. Waddell, for the intervenor, Canadian Foundation for Advancement of Investor Rights;

Jonathan Bida, for the intervenor, Shareholder Association for Research and Education.

These appeals were heard on May 13-16, 2013, before Doherty, Feldman, Cronk, Blair and Juriansz, JJ.A., of the Ontario Court of Appeal.

On February 3, 2014, Feldman, J.A., released the following judgment for the Court of Appeal.