In a decision released this morning, a specially convened five-judge panel of the Court of Appeal for Ontario provided guidance on issues of importance to securities class actions in Ontario and across Canada. Among other issues, which will be discussed in later posts, the Court of Appeal held that its interpretation in Sharma v. Timminco was incorrect, and provided guidance on the applicable limitation period for securities misrepresentation claims under Part XXIII.1 of the Ontario Securities Act.

In Timminco, the Court of Appeal held that the limitation period in Part XXIII.1 requires a plaintiff to obtain leave to proceed with his statutory cause of action within three years of the date that the alleged misrepresentation is made – otherwise, the claim would be statute-barred. The Supreme Court of Canada refused leave to appeal from this decision.

In Green v. CIBC, the Court of Appeal set aside the interpretation that it previously gave in Timminco, and held that the limitation period will be suspended once a representative plaintiff: (i) pleads a cause of action based on section 138.3 of the Ontario Securities Act; and (ii) pleads the intent to seek leave to commence an action under the Ontario Securities Act. The Court of Appeal also noted that, to the extent that there are concerns about plaintiffs bringing motions for leave with dispatch, they can be resolved by the parties and class action judges.

This is unlikely to be the last word on the limitation period for Part XXIII.1 claims.