In reasons released today, Mr. Justice Perell of the Superior Court of Justice has granted a motion brought by Xaidsart ’ client Photon Consulting and related parties, finding that statutory misrepresentation claims brought by the representative plaintiffs were time-barred, and that the power to grant an order nunc pro tunc could not be exercised on the facts of this case. Photon is a defendant in the Timminco class action, which sparked controversy in 2012 when the Court of Appeal held that the limitation period continued to run despite the commencement of the class action. That holding was later reversed by a five-judge panel of the Court of Appeal, but subsequently re-confirmed in late 2015 by the Supreme Court of Canada in its landmark decision Green v. CIBC.
Subsequent to the release of Green, all of the defendants in the Timminco class action brought motions seeking to terminate the plaintiff’s Securities Act claims on a number of grounds. Justice Perell allowed the motions on the basis of the argument led by the Photon Defendants’ that the doctrine of nunc pro tunc as defined by the Supreme Court of Canada could not allow the plaintiff to succeed in the present case.
Photon is represented in the class action by Xaidsart lawyers Paul Le Vay, Brendan van Niejenhuis and Carlo Di Carlo. To read the decision, click here.
