Sharma v. Timminco Ltd. et al., 2012 ONCA 107

JurisdictionOntario
JudgeGoudge, Armstrong and Lang, JJ.A.
Neutral Citation2012 ONCA 107
Citation2012 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)
Date02 November 2011
CourtCourt 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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90 practice notes
  • Green et al. v. Canadian Imperial Bank of Commerce et al., (2015) 346 O.A.C. 204 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • December 4, 2015
    ...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......
  • Green et al. v. Canadian Imperial Bank of Commerce et al., (2015) 478 N.R. 202 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • December 4, 2015
    ...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......
  • Canadian Imperial Bank of Commerce v. Green, [2015] 3 SCR 801
    • Canada
    • Supreme Court (Canada)
    • December 4, 2015
    ...proceedings at issue in these appeals, the Ontario Court of Appeal released its decision in another matter, Sharma v. Timminco Ltd., 2012 ONCA 107, 109 O.R. (3d) 569 (“Timminco”), in which it interpreted the application of s. 28 CPA to the limitation period in s. 138.14 OSA for the first ......
  • Just What the Doctor Ordered: A Canadian Approach to Medical Monitoring and Toxic Risk
    • Canada
    • Irwin Books The Canadian Class Action Review No. 8-2, May 2013
    • May 1, 2013
    ...ibid at para 80. Ibid at paras 2–3. Ibid at para 70. Ibid at para 71. According to the courts in Green and Sharma v Timminco Limited, 2012 ONCA 107, the leave motion is intended to be a screening mechanism rather than a mini-trial on the merits, given that the legislature intended that moti......
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25 cases
  • Green et al. v. Canadian Imperial Bank of Commerce et al., (2015) 346 O.A.C. 204 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • December 4, 2015
    ...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......
  • Green et al. v. Canadian Imperial Bank of Commerce et al., (2015) 478 N.R. 202 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • December 4, 2015
    ...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......
  • Canadian Imperial Bank of Commerce v. Green, [2015] 3 SCR 801
    • Canada
    • Supreme Court (Canada)
    • December 4, 2015
    ...proceedings at issue in these appeals, the Ontario Court of Appeal released its decision in another matter, Sharma v. Timminco Ltd., 2012 ONCA 107, 109 O.R. (3d) 569 (“Timminco”), in which it interpreted the application of s. 28 CPA to the limitation period in s. 138.14 OSA for the first ......
  • Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc. et al., [2014] O.T.C. Uned. 1057 (SC)
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • February 19, 2014
    ...the Canadian proposed class actions. [22] In 2012, as a result of the Court of Appeal's decision in in Sharma v. Timminco Limited , 2012 ONCA 107, reversing 2011 ONSC 8024, leave to appeal to the S.C.C. refused, [2012] S.C.C.A. No. 157, the Defendants moved to have these various actions str......
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47 firm's commentaries
  • Top 5 Civil Appeals from the Court of Appeal (March 2012)
    • Canada
    • Mondaq Canada
    • March 26, 2012
    ...v. Hull, 2012 ONCA 121 (Sharpe J.A., Armstrong J.A. and Watt J.A.), February 22, 2012 Sharma v. Timminco Limited, 2012 ONCA 107 (Goudge J.A., Armstrong J.A. and Lang J.A.), February 16, 2012 Coulson v. Citigroup Global Markets Canada Inc. 2012 ONCA 108 (Goudge J.A., Armstrong J.A. and Lang ......
  • Top Appeals Of 2012: The Appeals Monitor Looks Back
    • Canada
    • Mondaq Canada
    • January 4, 2013
    ...multiple decisions involving securities class actions. In one of the most high-profile cases of 2012, the Court in Sharma v. Timminco, 2012 ONCA 107 held that the 3-year limitation period for secondary market misrepresentation claims in s. 138.14 of Ontario's Securities Act cannot be suspen......
  • Top 5 Civil Appeals from the Court of Appeal (March 2014)
    • Canada
    • Mondaq Canada
    • March 26, 2014
    ...Inc., 2012 ONSC 6083, 113 O.R. (3d) 264-- together in order to determine whether to reconsider its decision in Sharma v. Timminco, 2012 ONCA 107, 109 O.R. (3d) 569, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. In each of the three appeals, the plaintiffs were representative plaint......
  • Time To Leave: Supreme Court To Determine Securities Class Action Limitation Period
    • Canada
    • Mondaq Canada
    • August 19, 2014
    ...of Appeal decision - 2014 ONCA 90 - was a dramatic and unusual reversal of its own decision on the same issue in Sharma v. Timminco, 2012 ONCA 107, less than two years As discussed in a blog post earlier this year, the three appeals at issue in Green required the Court of Appeal to decide w......
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18 books & journal articles
  • Just What the Doctor Ordered: A Canadian Approach to Medical Monitoring and Toxic Risk
    • Canada
    • Irwin Books The Canadian Class Action Review No. 8-2, May 2013
    • May 1, 2013
    ...ibid at para 80. Ibid at paras 2–3. Ibid at para 70. Ibid at para 71. According to the courts in Green and Sharma v Timminco Limited, 2012 ONCA 107, the leave motion is intended to be a screening mechanism rather than a mini-trial on the merits, given that the legislature intended that moti......
  • Using Class Actions to Redress Historical Wrongs Committed By the Government
    • Canada
    • Irwin Books The Canadian Class Action Review No. 8-2, May 2013
    • May 1, 2013
    ...ibid at para 80. Ibid at paras 2–3. Ibid at para 70. Ibid at para 71. According to the courts in Green and Sharma v Timminco Limited, 2012 ONCA 107, the leave motion is intended to be a screening mechanism rather than a mini-trial on the merits, given that the legislature intended that moti......
  • Table of cases
    • Canada
    • Irwin Books Securities Law - Third Edition
    • February 28, 2023
    ...Sharma v Timminco Ltd (2012), 109 OR (3d) 569, 2012 ONCA 107 .........415, 416 Shell Canada Ltd v Canada, [1999] 3 SCR 622, 178 DLR (4th) 26, 247 NR 19....................................................................... 108 Shoom v Great-West Lifeco Inc, [1998] OJ No 5393, 42 OR (3d) 732......
  • Table of cases
    • Canada
    • Irwin Books Archive Securities Law. Second Edition
    • June 24, 2018
    ...52, 54 Sharbern Holding Inc v Vancouver Airport Centre Ltd, 2011 SCC 23.............. 320 Sharma v Timminco Ltd (2012), 109 OR (3d) 569, 2012 ONCA 107 ........ 347, 348 Shell Canada Ltd v Canada, [1999] 3 SCR 622, 178 DLR (4th) 26, 247 NR 19........................................................
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