CITATION: 1654476 Ontario Limited v. Doe, 2016 ONSC 810
COURT FILE NO.: CV-11-429534CP
DATE: 20160201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1654476 ONTARIO LIMITED
Plaintiff
– and –
JOHN or JANE DOE, BCE INC. and 6796508 CANADA INC.
Defendants
A. Dimitri Lascaris, Paul Bates and Douglas M. Worndl for the Plaintiff
James Doris for the Defendant, BCE Inc.
George Karayannides for the Defendant, 6796508 Canada Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] Section 29 of the Class Proceedings Act, 1992, S.O. 1992, c.6 requires the leave of the court before a proposed class action can be discontinued.
[2] On consent, the Defendant BCE Inc. requests an order discontinuing this proposed class action without costs and without notice to the putative class members.
[3] On June 27, 2011, the Plaintiff 1654476 Ontario Limited commenced this action against John or Jane Doe, BCE Inc., and 6796508 Canada Inc. Nine months later on March 20, 2012, the Statement of Claim was amended.
[4] The proposed class action concerns the alleged harm suffered by persons who sold BCE Inc. common shares or BCE Inc. call options during the five-day period between June 30, 2008 and July 4, 2008. The Plaintiff alleges that the Defendants made a misrepresentation on June 30, 2008 concerning a pending privatization that caused the value of the shares and options to decline until July 4, 2008, when an announcement about the privatization led to an increase in the value of the shares and the options.
[5] The Plaintiff advances causes of action of: (1) common law misrepresentation; (2) corporate oppression pursuant to s. 241 of the Canada Business Corporations Act, R.S.C. 1985, c.44; and (3) secondary market misrepresentation pursuant to Part XXIII.1 of the Securities Act, R.S.O. 1990, c. S.5.
[6] Since the commencement of the action, the Plaintiff has not brought a motion for leave to assert its secondary market misrepresentation pursuant to s. 138.8 of the Securities Act, and it is now over seven years since the date of the alleged misrepresentation. The Plaintiff’s statutory cause of action claim is now statute-barred under ss. 138.8 and 138.14 of the Securities Act, which requires that leave to assert the action must be obtained within three years of the alleged misrepresentation; see Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60.
[7] Moreover, since no notice of motion for leave has ever been filed, the 2014 amendment to s. 138.14 of the Securities Act, which suspends the continued running of the three-year limitation period on the date that a notice of motion was filed, is not applicable.
[8] The common law misrepresentation claim and the oppression remedy claim appear to have been still born under ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, because the action was commenced just before the third anniversary of the misrepresentation, which was two years after the pleaded discovery of the announcement that would have triggered the running of the two-year limitation period.
[9] Thus, all of the claims of the putative class members are statute-barred and, therefore, no purpose would be served by continuing the action and no prejudice will be suffered by the putative class members by granting leave to the Plaintiff to discontinue the proposed class action.
[10] Under s. 29 of the Class Proceedings Act, in approving a discontinuance, the court is required to consider whether notice of the discontinuance should be given to the putative class members. In the immediate case, there is no need or reason to require a notice of the discontinuance.
[11] Accordingly, I grant leave that the action be discontinued without costs and without notice.
Perell, J.
Released: February 1, 2016
CITATION: 1654476 Ontario Limited v. Doe, 2016 ONSC 810
COURT FILE NO.: CV-11-429534CP
DATE: 20160201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1654476 ONTARIO LIMITED
Plaintiff
– and –
JOHN or JANE DOE, BCE INC. and 6796508 CANADA INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: February 1, 2016