Pennyfeather v. Timminco Limited

Pennyfeather v. Timminco Limited

Motion judge did not err in refusing to grant leave nunc pro tunc; appellant failed to establish entitlement under the Green (SCC) factors (insufficient diligence, no adequate explanation for not advancing leave timely, potential prejudice, merits untested), therefore appeal dismissed and nunc pro tunc relief denied.

Source-derived case information.

Citation
2017 ONCA 369
Parties
Plaintiff/appellant/respondent by Way of Cross Appeal: St. Clair Pennyfeather; Defendant/respondent/appellant by Way of Cross Appeal: Timminco Limited; Defendant/respondent: Photon Consulting LLC; Defendant/respondent: Rogol Energy Consulting LLC; Defendant/respondent: Michael Rogol; Defendant/respondent/appellant by Way of Cross Appeal: Dr. Heinz Schimmelbusch; Defendant/respondent/appellant by Way of Cross Appeal: Robert Dietrich; Defendant/respondent/appellant by Way of Cross Appeal: René Boisvert; Defendant/respondent/appellant by Way of Cross Appeal: Arthur R. Spector; Defendant/respondent/appellant by Way of Cross Appeal: Jack L. Messman; Defendant/respondent/appellant by Way of Cross Appeal: John C. Fox; Defendant/respondent/appellant by Way of Cross Appeal: Michael D. Winfield; Defendant/respondent/appellant by Way of Cross Appeal: Mickey M. Yaksich; Defendant/respondent: John P. Walsh
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
8 May 2017
Procedural Posture
Class Proceeding Statutory Securities Misrepresentation (osa Part Xxiii.1) / Appeal to Court of Appeal From Superior Court Motion Judge Order (motion for Leave Nunc Pro Tunc)
Outcome
Appeal dismissed; cross-appeal dismissed as moot
Legal Topics
Nunc Pro Tunc Relief, Limitation Period S.138.14 OSA, Leave Under S.138.8 OSA, Tolling Under S.28 CPA, Discretionary Relief, Abuse of Process
Source Language
english
Securities Law Class Actions Civil Procedure Limitation Periods Res Judicata and Issue Estoppel Costs Nunc Pro Tunc Relief Limitation Period S.138.14 OSA +4 more

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Parties

St. Clair Pennyfeather

Plaintiff/appellant/respondent by Way of Cross Appeal

Timminco Limited

Defendant/respondent/appellant by Way of Cross Appeal

Photon Consulting LLC

Defendant/respondent

Rogol Energy Consulting LLC

Defendant/respondent

Michael Rogol

Defendant/respondent

Dr. Heinz Schimmelbusch

Defendant/respondent/appellant by Way of Cross Appeal

Robert Dietrich

Defendant/respondent/appellant by Way of Cross Appeal

René Boisvert

Defendant/respondent/appellant by Way of Cross Appeal

Arthur R. Spector

Defendant/respondent/appellant by Way of Cross Appeal

Jack L. Messman

Defendant/respondent/appellant by Way of Cross Appeal

John C. Fox

Defendant/respondent/appellant by Way of Cross Appeal

Michael D. Winfield

Defendant/respondent/appellant by Way of Cross Appeal

Mickey M. Yaksich

Defendant/respondent/appellant by Way of Cross Appeal

John P. Walsh

Defendant/respondent

Procedural Posture

Class Proceeding Statutory Securities Misrepresentation (osa Part Xxiii.1) / Appeal to Court of Appeal From Superior Court Motion Judge Order (motion for Leave Nunc Pro Tunc)

Legal Issues

  1. 1 Whether leave to commence a statutory OSA claim could be granted nunc pro tunc after expiry of s.138.14 limitation period
  2. 2 Whether s.28 of the CPA tolled the OSA limitation period prior to leave being granted
  3. 3 Whether the motion judge erred in exercising discretion under Green (SCC) red-line rule

Ratio Decidendi

Motion judge did not err in refusing to grant leave nunc pro tunc; appellant failed to establish entitlement under the Green (SCC) factors (insufficient diligence, no adequate explanation for not advancing leave timely, potential prejudice, merits untested), therefore appeal dismissed and nunc pro tunc relief denied.

Court Disposition

Appeal dismissed; cross-appeal dismissed as moot

Orders

  • Appeal dismissed
  • Cross-appeal dismissed as moot