Sharma v. Timminco Ltd. et al.,
| Jurisdiction | Ontario |
| Judge | Goudge, Armstrong and Lang, JJ.A. |
| Neutral Citation | 2012 ONCA 107 |
| Citation | 2012 ONCA 107,(2012), 289 O.A.C. 19 (CA),109 OR (3d) 569,345 DLR (4th) 94,[2012] OJ No 719 (QL),19 CPC (7th) 1,211 ACWS (3d) 788,289 OAC 19,289 O.A.C. 19,345 D.L.R. (4th) 94,109 O.R. (3d) 569,(2012), 289 OAC 19 (CA),[2012] O.J. No 719 (QL) |
| Date | 02 November 2011 |
| Court | Court of Appeal (Ontario) |
Sharma v. Timminco Ltd. (2012), 289 O.A.C. 19 (CA)
MLB headnote and full text
Temp. Cite: [2012] O.A.C. TBEd. FE.021
Proceedings under the Class Proceedings Act, 1992
Ravinder Kumar Sharma (plaintiff/respondent) v. Timminco Limited, Photon Consulting LLC, Rogol Energy Consulting LLC, Michael Rogol, Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield, Mickey M. Yaksich and John P. Walsh (defendants/appellants)
(C53624; C53642; C53644; 2012 ONCA 107)
Indexed As: Sharma v. Timminco Ltd. et al.
Ontario Court of Appeal
Goudge, Armstrong and Lang, JJ.A.
February 16, 2012.
Summary:
The plaintiff commenced a proposed class action alleging misrepresentations by the defendants that adversely affected the value of shares in Timminco Inc. in the secondary market. The statement of claim alleged the common law causes of action of negligence and negligent misrepresentation. It also indicated that the plaintiff would move for an order granting leave to assert the statutory cause of action for misrepresentation found in s. 138.3 of the Ontario Securities Act. The plaintiff invoked s. 28 of the Class Proceedings Act (Ont.) and moved for an order declaring that the limitation period provided by the Securities Act in respect of s. 138.3 proceedings was suspended.
The Ontario Superior Court granted the order sought. The defendants appealed.
The Ontario Court of Appeal allowed the appeal and dismissed the motion.
Limitation of Actions - Topic 4403
Statutory causes of action - When time begins to run (incl. suspension) - The plaintiff commenced a proposed class action alleging misrepresentations by the defendants that adversely affected the value of shares in Timminco Inc. in the secondary market - The statement of claim alleged the common law causes of action of negligence and negligent misrepresentation - It also indicated that the plaintiff would move for an order granting leave to assert the statutory cause of action for misrepresentation found in s. 138.3 of the Ontario Securities Act - The plaintiff invoked s. 28 of the Class Proceedings Act (Ont.) and moved for an order declaring that the limitation period provided by the Securities Act in respect of s. 138.3 proceedings was suspended - The motion was dismissed on appeal - The Ontario Court of Appeal ruled that for a s. 138.3 cause of action to be asserted in a class proceeding, so as to trigger the suspension provision in s. 28(1) of the Class Proceedings Act, leave had to be granted - Since the plaintiff had not obtained leave, s. 28(1) had not been activated - See paragraphs 1 to 30.
Words and Phrases
Asserted - The Ontario Court of Appeal discussed the meaning of the word "asserted" found in s. 28(1) of the Class Proceedings Act, S.O. 1992, c. 6 - See paragraphs 16 to 30.
Cases Noticed:
Coulson v. Citigroup Global Markets Canada Inc. et al., 2010 ONSC 1596, affd. (2012), 288 O.A.C. 355; 2012 ONCA 108, consd. [para. 24].
Statutes Noticed:
Class Proceedings Act, S.O. 1992, c. 6, sect. 28(1) [para. 16].
Counsel:
Alan L.W. D'Silva, Daniel S. Murdoch and Lesley Mercer, for the appellants, Timminco Limited, Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield and Mickey M. Yaksich;
Paul Le Vay and Brendan Van Niejenhuis, for the appellant, Photon Consulting LLC;
Derek J. Bell, for the appellant, John P. Walsh;
Michael C. Spencer, Won J. Kim and Victoria Paris, for the respondent.
This appeal was heard on November 2, 2011, by Goudge, Armstrong and Lang, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Goudge, J.A., and released on February 16, 2012.
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...leave to commence the statutory claim (s. 138.8) was not obtained within that 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. I......
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