In Sharma v. Timminco Limited, the Ontario Court of Appeal held that for an Ontario Class Proceedings Act ("CPA") section 183.3 cause of action to be asserted and be able to trigger the suspension provision of section 28 of the CPA, leave must be granted.
This case stems from a securities class action raising allegations of negligence and negligent misrepresentation that affected the values of the shares of Timminco, between March 17, 2008 and November 11, 2008. The class representative indicated that he would seek leave to assert that there was a statutory cause of action for misrepresentation under section 138.3 of Part XXIII.1 of the Securities Act. The statute of limitations in this part of the act is three years from the alleged misrepresentation. In February 2011 the plaintiff, who had not yet obtained leave sought an order declaring the limitation period of three years to be suspended by use of section 28 of the Class Proceedings Act.
The issue before the Ontario Court of Appeal was whether mentioning an intention to seek leave, as per section 138.3 of the Ontario Securities Act, is sufficient to suspend the limitation period by using section 28 of the CPA. The court looked to the ordinary meaning and use of the words used in section 28 of the CPA and found that the words “assert” mean more than simply mentioning, and as such the court finds that the section 138.3 cause of action is not asserted in the class proceeding because no leave has been granted by the court. The court found that for a section 138.3 cause of action to be asserted in a class proceeding resulting in the ability to trigger the suspension provision of section 28 of the CPA, leave of the court must be granted and since no such leave was granted, section 28 cannot be utilized.
The appeal was allowed and the respondent’s motion for an order declaring the limitation period set out in section 138.13 of the Securities Act not applicable is dismissed.
February 16, 2012
Link to Decision
Sierra Robart
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Thursday, February 16, 2012
Monday, February 13, 2012
Teal Cedar Products Ltd. v. British Columbia (Ministry of Forests), 2012 BCCA 70
In Teal Cedar Products Ltd v. British Columbia (Ministry of Forests), the British Columbia Court of Appeal clarified the circumstances surrounding compensation provided under s. 7 of the Protected Areas Forest Compensation Act ("Compensation Act") and s. 60 of the Forest Act. Justice Saunders held for the court that compensation can only be calculated starting from the date of the reduction in the allowable annual cut.
In April 1993, Teal Cedar Products Ltd purchased a forest license under the Forest Act to harvest a stipulated volume of wood annually from an area called Chart Area 112. Shortly before the purchase, the Ministry of Forests had suspended logging in part of the area while considering the possibility of a provincial park, which materialized in July 1995. Although the park's creation prohibited further logging in that part of Chart Area 112, Teal's allowable annual cut was not impacted until it was reduced on April 1, 1999. British Columbia appealed from an order to compensate Teal for its loses from July 1995 to April 1, 1999.
Saunders J. held that although the government's actions were a "taking," the relevant compensation scheme was dictated by s. 7 of the Compensation Act and s. 60 of the Forest Act, rather than the provincial Expropriation Act. Justice Saunders disagreed with both the arbitrator and trial judge's interpretations and found that the two provisions provided a complete code of compensation. She distinguished this case from Toronto Area Transit Operating Authority v. Dell Holdings, which provided compensation for losses from a preceding period where they were caused by a scheme associated with the "taking", holding that the language of s. 60(4) of the Forest Actonly provides compensation from the date of the reduction in the allowable cut. Saunders J. held that compensation commences from April 1, 1999 when the allowable annual cut was reduced, and allowed British Columbia's appeal.
February 13, 2012
Link to Decision
Adrienne Ho
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In April 1993, Teal Cedar Products Ltd purchased a forest license under the Forest Act to harvest a stipulated volume of wood annually from an area called Chart Area 112. Shortly before the purchase, the Ministry of Forests had suspended logging in part of the area while considering the possibility of a provincial park, which materialized in July 1995. Although the park's creation prohibited further logging in that part of Chart Area 112, Teal's allowable annual cut was not impacted until it was reduced on April 1, 1999. British Columbia appealed from an order to compensate Teal for its loses from July 1995 to April 1, 1999.
Saunders J. held that although the government's actions were a "taking," the relevant compensation scheme was dictated by s. 7 of the Compensation Act and s. 60 of the Forest Act, rather than the provincial Expropriation Act. Justice Saunders disagreed with both the arbitrator and trial judge's interpretations and found that the two provisions provided a complete code of compensation. She distinguished this case from Toronto Area Transit Operating Authority v. Dell Holdings, which provided compensation for losses from a preceding period where they were caused by a scheme associated with the "taking", holding that the language of s. 60(4) of the Forest Actonly provides compensation from the date of the reduction in the allowable cut. Saunders J. held that compensation commences from April 1, 1999 when the allowable annual cut was reduced, and allowed British Columbia's appeal.
February 13, 2012
Link to Decision
Adrienne Ho
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