Xaidsart lawyers Paul Le Vay, Brendan van Niejenhuis and Carlo Di Carlo successfully represented Photon Consulting LLC and related parties at the Ontario Court of Appeal in the latest in the on-going saga in the Pennyfeather v Timminco Limited class action.
The appeal was from a decision denying the plaintiff’s motion for leave to bring a statutory claim for shareholder misrepresentation under s. 138 of the Ontario Securities Act on a nunc pro tunc basis, basically, back-dating the order to a date within the statutory limitation period of three years. In 2012, the Court of Appeal held that the limitation period continued to run despite the commencement of the class action, ending the plaintiff’s s. 138 case at that time. However, that holding was later reversed by a five-judge panel of the Court of Appeal which heard three other cases. However, it was subsequently re-confirmed in late 2015 by the Supreme Court of Canada in its landmark decision Green v. CIBC.
The most recent decision from the Court of Appeal represents that Court’s first application of the test established by the Supreme Court in Green for the availability of nunc pro tunc relief. In its submissions, the Xaidsart team focused on the discretionary factors articulated by the Supreme Court, and argued that the plaintiff had failed to act with sufficient diligence to merit a nunc pro tunc order. This was the argument that ultimately carried the day. The Court of Appeal upheld the holding the motion judge that class counsel chose to focus on settlement, rather than advancing the leave motion with diligence and thus did not merit the application of the nunc pro tunc doctrine.
