Law Times

PAGE 10 T plaintiffs in secondary-market securities class actions to seek the required leave to commence the lawsuit from the court with- in three years of the date of the impugned recent Ontario Court of Appeal ruling requiring laintiffs' and defence lawyers agree that a could have broad-reaching impli- cations for other types of matters. Indeed, some defence lawyers misrepresentation are calling Sharma v. Timminco Ltd. the most important decision yet on secondary-market class actions. The decision in the $520-mil- lion case overturned an earlier decision by Ontario Superior Court Justice Paul Perell. He ruled that s. 28 of the Class Proceedings imminco has broad implications Class action bar taking note of ruling on limitation period FOCUS BY JULIUS MELNITZER For Law Times P Act suspended the running of the three-year limitation period from the time the plaintiffs announced their intention to seek leave in their statement of claim. But Alan D'Silva, who with a disparity between individuals who chose to sue by way of class proceedings and those who do so individually. "The Court of Appeal, cor- s ruling created Stikeman Elliott LLP colleagues Daniel Murdoch and Lesley Mercer represented Timminco, maintains Perell' ensuring that secondary-mar- ket claims proceeded with dis- patch so they are not held over the heads of the company and other potential defendants." Both plaintiffs' and defen- agree dant lawyers decision's impact goes beyond that the securities law cases. "Timminco will have pro- rectly in our view, determined that to hold otherwise would be unfair because it would extend the limitation period for class plaintiffs beyond the period allowed to individual plaintiffs or shareholders," he says. "The court also recognized that this interpretation was with the legislative purpose of consistent along with colleagues Michael Spencer and Victoria Paris, rep- resented the plaintiff. Jennifer Dolman of Osler Hoskin & Harcourt found implications for many types of class actions," says Won Kim of Toronto' s Kim Orr. He, agrees. "There are other stat- utes with LLP litigation, such as the require- ment to give notice or obtain leave, preconditions to decision is certainly open to the broader interpretation that the Class Proceedings Act does not suspend time limits for satisfying the preconditions that are found in these particular statutes." By way of example, Dolman cites Ontario's Arthur Wishart " she says. "The Timminco plaintiffs who do not discover the wrongdoing until close to the expiry of the three years." As it turns out, just a few the weeks before period would have expired in February 2011, the plaintiffs requested a case conference with Perell to deal with the prospect of a limitation problem. At the case conference on three-year March 10, 2011, Kim and his colleagues asked Perell to accel- erate the leave motion to a date before 'By requiring the actual granting of leave before the limitation period is suspended, the decision gives defendants an incentive not to make full and fair disclosure,' says Won Kim. Protection Act has a similar notice provision for consumers who want to rescind their con- tracts. So does the Proceedings Against the Crown Act. It requires citizens who want to sue the government court ruled that the right to sue did not arise until obtained, courts have ruled that the right to seek rescission in a franchise case does not arise unless notice was given in a timely fashion," says Dolman. Ontario's Consumer As in Timminco, where the leave was Act that governs franchise agree- ments. The legislation requires a party that asks the court to rescind a franchise agreement to give notice within certain time limits. " before starting their lawsuits. "The Court of Appeal has that emphasized instructions appeal from the Supreme Court of Canada, says the Court of Appeal' preconditions to suing apply to class actions," Dolman notes. Kim, who notes his firm has to seek time-limited leave to tial plaintiffs. "By requiring the actual grant- " s ruling is unfair to poten- ing of leave before the limitation period is suspended, the decision gives defendants an incentive not to make full and fair disclosure, he says. "As well, it prejudices to give notice so because it would not be "pro- cedurally fair, expired on March 17, 2011. Although Perell refused to do the limitation period ily litigated lawsuit subject to case management, Kim maintains it' Appeal didn't dismiss the statu- tory misrepresentation case but merely ruled that the limitation period had run. According to Kim, this will s significant that the Court of allow him to go back to Perell and ask him to backdate the leave order, thereby obviating the limi- tation problem. But D'Silva disagrees. "The issue before the Court tain expedited procedural steps "that may address the risk." Against this background and in the context of a heav- " he did order cer- April 16, 2012 • lAw Times of Appeal was whether the limi- tation period was suspended merely by commencing the proposed action by issuing a statement of claim," he says. "We believe that the plaintiffs will not be able to rely on the events that took place at the case con- ference to revive it." LT CYBERBAHN® LITIGATION SUPPORT SERVICES Issuing a claim in Toronto? Filing a motion in York Region? Seeking an injunction in Halton? Serving several parties across Canada simultaneously? We'll do it all for you – quickly, accurately and efficiently. With Legal i Link™, our secure online system, you can submit, print and track the status of your request 24/7. We make the litigation support process exactly what it should be – perfectly seamless. FOR FAST, EFFICIENT LITIGATION SUPPORT SERVICES Visit www.cyberbahn.com Call 416-687-7961 or 1-800-267-0183 option 4 Absolute professionalism and respect for you and your client relationships, and the tenacity required to go the distance in pursuit of the best possible outcome. For proven experience in class actions, count on Lerners. Contact our London or Toronto office today and turn our experience to your advantage London: 519 672 4510 Toronto: 416 867 3076 www.lerners.ca Untitled-2 1 www.lawtimesnews.com 12-04-10 8:12 AM

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