Analysis: A case for awarding costs against the Ontario Court of Appeal?

Kevin O’Brien, Robert Carson

Feb 11, 2013

Julius Melnitzer, Legal Post, Financial Post

(Extract)

As Robert Carson and Kevin O’Brien of Osler Hoskin & Harcourt report in the firm’s latest Update, the Court of Appeal for Ontario has decided to sit a five-judge panel to resolve the issues that have arisen around the limitation period applicable to securities class actions for secondary market representations.

As well they should. If there ever was a case that made a mess of the civil litigation process, was short-sighted, caused delays and additional expense, and hampered access to justice, it was the Court’s decision in Sharma v. Timminco Ltd. The court ruled that plaintiffs in secondary market misrepresentation class actions had to bring their case within three years of the date that the misrepresentation was made.

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Extending the limitation period is not a new concept. For years, judges have done so with respect to various prescriptions by applying the doctrine of “special circumstances” or making a nunc pro tunc order, the effect of which is to backdate the granting of an order to an earlier date. Whether judges could grant relief on these grounds under the Securities Act was an issue that would inevitably arise.

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This having been said, shouldn’t the court, with its publicly professed concerns about delay and access to justice, decided in Timminco whether the limitation period could be extended? It would be all over now if they did, subject only to an appeal to the Supreme Court of Canada, which is something that is likely going to happen no matter what the Court of Appeal now decides.

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And here’s a suggestion that I believe would earn more than a few brownie points: whatever the result of the current appeals, have the Court of Appeal pay all parties’ costs out of its own budget. Ridiculous as this somewhat tongue-in-cheek suggestion may seem, there’s an argument that it would make sense to the public, if not to the profession.

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