Case information
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35811
IMAX Corporation, et al. v. Marvin Neil Silver, et al.
(Ontario) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2015-12-15 | Appeal closed | |
| 2015-12-07 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2015-12-07 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2015-12-04 |
Judgment on the appeal rendered, CJ Ro Cro Mo Ka Ga Côt, The appeal from the judgment of the Court of Appeal for Ontario, Number C55982, 2014 ONCA 90, dated February 3, 2014, heard on February 9, 2015, is dismissed with costs throughout. McLachlin C.J. and Rothstein and Côté JJ. are dissenting in part. Dismissed, with costs |
|
| 2015-11-12 | Correspondence received from, Dana Peebles dated 2015-11-09 Re: Settlement agreement (Sent to the Court 0n 2015-11-18) | IMAX Corporation |
| 2015-02-23 | Transcript received, (207 pages) | |
| 2015-02-09 | Judgment reserved OR rendered with reasons to follow | |
| 2015-02-09 | Respondent's condensed book, Submitted in Court (14 copies) | Marvin Neil Silver |
| 2015-02-09 | Appellant's condensed book, Submitted in court (14 copies) | IMAX Corporation |
| 2015-02-09 |
Hearing of the appeal, 2015-02-09, CJ Ro Cro Mo Ka Ga Côt Judgment reserved |
|
| 2015-02-04 | Supplemental document, (Supplemental book af authorities), Completed on: 2015-02-04 | Marvin Neil Silver |
| 2015-02-03 | Appeal perfected for hearing | |
| 2015-02-03 |
Order by, (Joint with 35807 & 35813), Ga, FURTHER TO THE ORDER dated December 17, 2014, granting leave to intervene to the Canadian Foundation for Advancement of Investor Rights, the Ontario Securities Commission, the Shareholder Association for Research and Education and the Insurance Bureau of Canada; IT IS HEREBY FURTHER ORDERED THAT: 1. The Insurance Bureau of Canada is granted permission to present oral argument not exceeding five (5) minutes at the hearing of these appeals. 2. The factums of the Canadian Foundation for Advancement of Investor Rights, the Ontario Securities Commission and the Shareholder Association for Research and Education will be considered without the need for oral argument. Allowed in part |
|
| 2015-02-03 |
Appeal hearing scheduled, 2015-02-09, Early Start 9 a.m. (to be heard with 35807 & 35813) Judgment reserved |
|
| 2015-01-30 | Notice of appearance, Dimitri Lascaris, Michael Robb, Daniel Bach, Serge Kalloghlian and William Sasso will be present at the hearing. | Marvin Neil Silver |
| 2015-01-26 | Intervener's book of authorities, Joint with 35807 & 35813, Completed on: 2015-01-26 | Ontario Securities Commission |
| 2015-01-26 | Intervener's factum, Joint with 35807 & 35813, Completed on: 2015-01-26 | Ontario Securities Commission |
| 2015-01-26 | Intervener's book of authorities, Joint with 35807 & 35813, Completed on: 2015-01-26 | Canadian Foundation for Advancement of Investor Rights |
| 2015-01-26 | Intervener's factum, Joint with 35807 & 35813, Completed on: 2015-01-26 | Canadian Foundation for Advancement of Investor Rights |
| 2015-01-22 | Correspondence received from, 6 reserved seats requested | Marvin Neil Silver |
| 2015-01-13 | Correspondence received from, Marie-France Major dated 2015-01-13. Re: Replace Tab 56 of volume 1 in the book of authorities (Sent to the Court on 2015-01-14) | Marvin Neil Silver |
| 2015-01-13 | Certificate of counsel (attesting to record) | Marvin Neil Silver |
| 2015-01-12 | Respondent's book of authorities, (2 volumes), Completed on: 2015-01-12 | Marvin Neil Silver |
| 2015-01-12 | Respondent's record, Completed on: 2015-01-12 | Marvin Neil Silver |
| 2015-01-12 | Respondent's factum, Completed on: 2015-01-12 | Marvin Neil Silver |
| 2014-12-17 | Order on motion for leave to intervene, (by Gascon J.) | |
| 2014-12-17 |
Decision on the motion for leave to intervene, (joint with 35807 and 35813), Ga, UPON APPLICATIONS by Photon Consulting LLC, Rogol Energy Consulting LLC and Michael Rogol for an extension of time to serve and file a motion for leave to intervene and for leave to intervene in the above appeals; AND UPON APPLICATIONS by the Canadian Foundation for Advancement of Investor Rights, Mr. St. Clair Pennyfeather, the Ontario Securities Commission, Mr. John P. Walsh and Timminco Limited for leave to intervene in the above appeals; AND UPON APPLICATIONS by the Shareholder Association for Research and Education and the Insurance Bureau of Canada for leave to intervene in the appeal Canadian Imperial Bank of Commerce et al. v. Howard Green et al. (35807); AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for an extension of time to serve and file the motion for leave to intervene of Photon Consulting LLC, Rogol Energy Consulting LLC and Michael Rogol is granted. The motions for leave to intervene of the Canadian Foundation for Advancement of Investor Rights and the Ontario Securities Commission are granted, and the said two (2) interveners shall be entitled to each serve and file a single factum common to all three appeals not to exceed ten (10) pages in length, on or before January 26, 2015. The motions for leave to intervene of the Shareholder Association for Research and Education and the Insurance Bureau of Canada are granted and the said two (2) interveners shall be entitled to each serve and file a single factum, not to exceed ten (10) pages in length, on or before January 26, 2015 in the appeal Canadian Imperial Bank of Commerce et al. v. Howard Green et al. (35807). The motions for leave to intervene of Photon Consulting LLC, Rogol Energy Consulting LLC and Michael Rogol, as well as Mr. St. Clair Pennyfeather, Mr. John P. Walsh and Timminco Limited are dismissed. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their interventions. The requests of the respondents in the appeal Canadian Imperial Bank of Commerce et al. v. Howard Green et al. (35807) and of the appellants in the appeal Celestica Inc. et al. v. Trustees of the Millwright Regional Council of Ontario Pension Trust Fund (35813) to serve and file facta in response to the interveners’ facta are denied. Allowed in part |
|
| 2014-12-17 | Submission of motion for leave to intervene, Ga | |
| 2014-12-10 | Notice of hearing sent to parties | |
| 2014-12-09 | Response to the motion for leave to intervene, (Letter Form), of CFAIR, St. Claire, OSC, Walsh and Timminco, Completed on: 2014-12-09, (Electronic version filed on 2014-12-09) | Marvin Neil Silver |
| 2014-12-09 | Notice of appearance, Paul Steep, Dana Peebles and Brandon Kain will be present at the hearing. | IMAX Corporation |
| 2014-12-04 | Motion for leave to intervene, (Book Form), Joint with 35807 & 35813 - Motion for extension of time also included, Completed on: 2014-12-04, (Electronic version filed on 2014-12-19) | Photon Consulting LLC, Rogol Energy Consulting LLC and Michael Rogol |
| 2014-12-01 | Notice of name | Timminco Limited |
| 2014-12-01 | Motion for leave to intervene, (Book Form), (joint with 35807 and 35813), Completed on: 2014-12-01, (Electronic version filed on 2014-12-01) | Timminco Limited |
| 2014-12-01 | Motion for leave to intervene, (Book Form), 2 volumes (jiont with 35807 and 35813), Completed on: 2014-12-01, (Printed version filed on 2014-12-04) | John P. Walsh |
| 2014-12-01 | Motion for leave to intervene, (Book Form), (joint with 35807 and 35813), Completed on: 2014-12-01, (Electronic version filed on 2014-12-15) | Ontario Securities Commission |
| 2014-12-01 | Motion for leave to intervene, (Book Form), (2 volumes) - joint with 35811 and 35813, Completed on: 2014-12-01, (Electronic version filed on 2014-12-01) | St. Clair Pennyfeather |
| 2014-11-28 | Motion for leave to intervene, (Book Form), (joint with 35807 and 35813), Completed on: 2014-11-28, (Electronic version filed on 2014-11-28) | Canadian Foundation for Advancement of Investor Rights |
| 2014-11-10 | Appellant's book of authorities, (Book Form), 4 volumes, Completed on: 2014-11-10 | IMAX Corporation |
| 2014-11-10 | Appellant's record, (Book Form), Completed on: 2014-11-10 | IMAX Corporation |
| 2014-11-10 | Appellant's factum, (Book Form), Completed on: 2014-11-10 | IMAX Corporation |
| 2014-10-10 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2014-10-10 |
Order by, (the original signed order can be found in case file #35807), CJ, IT IS HEREBY ORDERED THAT: 1. The appellants’ records, factums and books of authorities shall be served and filed on or before November 10, 2014. 2. Any person wishing to intervene in this appeal under Rule 55 of the Rules of the Supreme Court of Canada shall serve and file a motion for leave to intervene on or before December 1, 2014. 3. The appellants and respondents shall serve and file their responses, if any, to the motions for leave to intervene on or before December 9, 2014. 4. Replies to any responses to the motions for leave to intervene shall be served and filed on or before December 12, 2014. 5. The respondents’ records, factums and books of authorities shall be served and filed on or before January 12, 2015. 6. Any interveners granted leave to intervene under Rule 59 of the Rules of the Supreme Court of Canada shall serve and file their factum and book of authorities on or before January 26, 2015. Granted |
|
| 2014-09-04 | Notice of appeal, service to come (rec'd Sept. 5, 2014), Completed on: 2014-09-05 | IMAX Corporation |
| 2014-08-08 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2014-08-08 | Judgment on leave sent to the parties | |
| 2014-08-07 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C55982, 2014 ONCA 90, dated February 3, 2014, is granted with costs in the cause. This case is to be heard with Canadian Imperial Bank of Commerce et al. v. Howard Green et al. (35807) and Celestica Inc. et al. v. Trustees of the Millwright Regional Council of Ontario Pension Trust Fund et al. (35813). Granted, with costs in the cause |
|
| 2014-07-07 | All materials on application for leave submitted to the Judges, LeB Ka Ga | |
| 2014-05-16 | Applicant's reply to respondent's argument, Completed on: 2014-05-16 | IMAX Corporation |
| 2014-05-07 | Certificate (on limitations to public access) | Marvin Neil Silver |
| 2014-05-07 | Respondent's response on the application for leave to appeal, Completed on: 2014-05-07 | Marvin Neil Silver |
| 2014-04-07 | Letter acknowledging receipt of a complete application for leave to appeal, File opened on 2014-04-07 | |
| 2014-04-04 | Book of authorities | IMAX Corporation |
| 2014-04-04 | Certificate (on limitations to public access), (Included in the application for leave to appeal), (Electronic version filed on 2014-04-04) | IMAX Corporation |
| 2014-04-04 | Notice of name, (Electronic version filed on 2014-04-04) | IMAX Corporation |
| 2014-04-04 | Application for leave to appeal, Completed on: 2014-04-04 | IMAX Corporation |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| IMAX Corporation | Appellant | Active |
| Richard L. Gelfond, Bradley J. Wechsler, Francis T. Joyce, Neil S. Braun, Kenneth G. Copland, Garth M. Girvan, David W. Leebron and Kathryn A. Gamble | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Silver, Marvin Neil | Respondent | Active |
| Cohen, Cliff | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Canadian Foundation for Advancement of Investor Rights | Intervener | Active |
| Ontario Securities Commission | Intervener | Active |
Counsel
Party: IMAX Corporation
Counsel
Dana M. Peebles
Carole Piovesan
Brandon Kain
Suite 4700, T-D Bank Tower
P.O. Box 48
Toronto, Ontario
M5K 1E6
Telephone: (416) 601-7998
FAX: (416) 601-8246
Agent
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com
Party: Richard L. Gelfond, Bradley J. Wechsler, Francis T. Joyce, Neil S. Braun, Kenneth G. Copland, Garth M. Girvan, David W. Leebron and Kathryn A. Gamble
Counsel
Dana M. Peebles
Carole Piovesan
Suite 4700, T-D Bank Tower
P.O. Box 48
Toronto, Ontario
M5K 1E6
Telephone: (416) 601-7998
FAX: (416) 601-8246
Agent
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com
Party: Silver, Marvin Neil
Counsel
A. Dimitri Lascaris
Daniel E.H. Bach
Serge Kalloghlian
Marie-France Major
680 Waterloo Street
P.O. Box 2520
London, Ontario
N6A 3V8
Telephone: (519) 660-7872
FAX: (519) 660-7873
Email: michael.robb@siskinds.com
Agent
100 - 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 101
FAX: (613) 695-8580
Email: emeehan@supremeadvocacy.ca
Party: Cohen, Cliff
Counsel
A. Dimitri Lascaris
Daniel E.H. Bach
Serge Kalloghlian
Marie-France Major
680 Waterloo Street
P.O. Box 2520
London, Ontario
N6A 3V8
Telephone: (519) 660-7872
FAX: (519) 660-7873
Email: michael.robb@siskinds.com
Agent
100 - 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 101
FAX: (613) 695-8580
Email: emeehan@supremeadvocacy.ca
Party: Canadian Foundation for Advancement of Investor Rights
Counsel
501-250 University Ave
Toronto, Ontario
M5H 3E5
Telephone: (416) 646-4329
FAX: (416) 646-4301
Email: marg.waddell@paliareroland.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Ontario Securities Commission
Counsel
Amanda Heydon
20, Queen Street West
Toronto, Ontario
M5H 3S8
Telephone: (416) 595-8782
FAX: (416) 593-8321
Email: aperschy@osc.gov.on.ca
Agent
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Limitation of actions - Legislation - Interpretation - Civil procedure - Class actions - Securities - Statutory claim - Statement of claim in proposed class action indicating that plaintiffs will seek order granting leave to assert statutory cause of action for misrepresentation provided by s. 138.3 of Part XXIII.1 of Ontario Securities Act - Leave not obtained prior to expiry of three-year limitation period set out in s. 138.14 of Securities Act - Whether the limitation period was suspended by the filing of a statement of claim pleading only common law claims while giving notice that the plaintiffs intended to assert a s. 138.3 cause of action - If not, whether the expiry of the limitation period can be cured by an order nunc pro tunc - Securities Act, R.S.O. 1990, c. S.5, ss. 138.3, 138.8, 138.14 - Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 28.
In this class action proceeding, the representative plaintiffs are claiming damages under Part XXIII.1 of the Ontario Securities Act (“OSA”) for misrepresentations alleged to have been made in respect of shares trading in the secondary market. In addition to common law negligent misrepresentation claims, they make a claim based on the new statutory cause of action found at s. 138.3 of the OSA, which can only be commenced with leave of the court and is subject to a three-year limitation period, found at s. 138.14(1) of the OSA. The class action was commenced within the three-year limitation period and a motion for leave to commence the statutory claim was brought, but leave was granted after the expiry of the limitation period. On motion by the defendants to dismiss the statutory claim as being time-barred in view of the Ontario Court of Appeal’s 2012 decision in Sharma v. Timminco, 2012 ONCA 107, the motions judge ordered that leave to commence the action applied nunc pro tunc within the limitation period. On appeal by the defendants, a five-judge panel of the Court of Appeal concluded that the decision in Timminco should be overturned, and therefore that the action was not statute-barred.
Lower court rulings
Ontario Superior Court of Justice
CV-06-3257-00, 2012 ONSC 4881
Motion by applicants for an order dismissing the respondents’ claims pursuant to s. 138.3 of the Securities Act on the ground that they are barred by s. 138.14 dismissed; motion by respondents for an order granting leave nunc pro tunc to commence an action under s. 138.3 allowed
Court of Appeal for Ontario
C55982, 2014 ONCA 90
Appeal by applicants dismissed: the respondents’ claims under Part XXIII.1 of the Securities Act are not statute-barred
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
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Downloadable PDFs
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Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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