



COURT OF APPEAL FOR ONTARIO

CITATION: Pennyfeather v. Timminco Limited, 2017 ONCA 369

DATE: 20170508

DOCKET: C62284

Strathy C.J.O., Weiler and Benotto JJ.A.

BETWEEN

St. Clair Pennyfeather

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Timminco Limited
,
    Photon Consulting LLC, Rogol Energy Consulting LLC, Michael Rogol,
Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur
    R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield, Mickey M.
    Yaksich
, and John P. Walsh

Defendants (Respondents/

Appellants by way of cross-appeal
)

Proceeding under the
Class Proceedings Act,
    1992

Won J. Kim, Michael C. Spencer and Aris Gyamfi, for the appellant/respondent
    by way of cross-appeal

Alan L.W. DSilva and Daniel S. Murdoch, for the respondents/appellants
    by way of cross-appeal Timminco Limited, Dr. Heinz Schimmelbusch, Robert
    Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox,
    Michael D. Winfield and Mickey M. Yaksich

Paul Le Vay, Brendan Van Niejenhuis and Carlo Di Carlo,
    for the respondents Photon Consulting LLC, Rogol Energy Consulting LLC and
    Michael Rogol

Emrys Davis, for the respondent John P. Walsh

Heard: January 25 and 26, 2017

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated May 12, 2016, with reasons reported at 2016
    ONSC 3124.

Strathy C.J.O.:

[1]

The
    appellants proposed securities class action is presumptively time-barred
    because it was not commenced within the three-year limitation period contained
    in s. 138.14 of the Ontario
Securities Act
, R.S.O. 1990, c. S.5 (
OSA
).

[2]

I
    say presumptively, because the dispositive issue in this appeal is whether the
    motion judge erred in the exercise of his discretion in finding that the
    appellant failed to meet the test for
nunc pro tunc
relief, described
    by the Supreme Court of Canada in
Canadian Imperial Bank of Commerce v.
    Green
, 2015 SCC 60, [2015] 3 S.C.R. 801 (
Green (SCC)
). For the
    reasons below, I conclude the motion judge did not err and I would dismiss the
    appeal.

[3]

For
    this reason, it is unnecessary to consider the respondents cross-appeal, which
    asserts that
nunc pro tunc
relief is barred by the doctrines of
res
    judicata
, issue estoppel or abuse of process. I will, nevertheless,
    explain why I would uphold the motion judges decision on that issue.

A.

Background

[4]

In
    this section I will begin by summarizing the statutory cause of action for
    misrepresentation in the secondary securities market, contained in Part XXIII.1
    of the
OSA
. I will then describe this action and its progress through
    the courts, up to the present appeal. Finally, I will examine
Green (SCC)
in more detail.

[5]

In
    the sections that follow, I will summarize the motion judges reasons, the
    submissions of the parties on appeal and my analysis of the issues.

(1)

The
OSA
cause of action

[6]

A
    statutory cause of action for misrepresentation in the secondary securities
    market was introduced as Part XXIII.1 of the
OSA
by amendments effective
    December 31, 2005. A similar remedy was made available in the primary market by
    Part XXIII. Both causes of action were uniquely suited to class actions because
    the remedy was available whether or not an investor had actually relied on an
    alleged misrepresentation. It resolved the problem that had typically torpedoed
    common law misrepresentation class actions  namely, the need to prove individual
    reliance: see, for example,
Bayens v. Kinross Gold Corporation
, 2014
    ONCA 901, 327 O.A.C. 156, application for leave to appeal to S.C.C.
    discontinued, [2015] S.C.C.A. No. 59.

[7]

The
    history of the statutory remedy, and the policy goals underlying it, were
    discussed by Côté J. in
Green (SCC)
, at paras. 63-69.
[1]
She observed that the legislation struck a delicate balance between the
    interests of potential plaintiffs and those of public issuers of securities, including
    their short-term and long-term shareholders. This balance was achieved, in
    part, by a leave requirement  a judicial screening mechanism designed to weed
    out unmeritorious actions (sometimes called strike suits) as early as
    possible in the litigation process.

[8]

Section
    138.8(1) provided that no action could be commenced without leave of the court.
    Leave would be granted where the court was satisfied that the action was
    brought in good faith and there was a reasonable possibility that the action
    would be resolved at trial in favour of the plaintiff.

[9]

The
    three year limitation period was contained in s. 138.14. It, too, was part of
    the delicate balance struck by the legislation (
per
Côté J., at
    para. 101). It provided that, in the case of a misrepresentation in a document,
    no action could be commenced later than the
earlier
of three years after the date on which the document containing the
    misrepresentation was
first released
or six months
    after the issuance of a news release disclosing that leave had been granted to
    commence an action under s. 138.3 or under comparable legislation in another
    province in respect of the same misrepresentations.

[10]

This new statutory
    cause of action opened up new possibilities for class actions and for the
    plaintiffs class action bar. The practice developed that courts heard motions
    for certification and leave at the same time, based on common materials. If the
    case did not pass the certification hurdle, then the statutory remedy would be
    of little practical use and if it did not pass the leave hurdle under the
OSA
,
    a class action based on a cause of action for common law misrepresentation
    would likely be unworkable and the putative class action would likely fail the
    preferable procedure test on the certification motion.

[11]

But a troublesome
    issue remained. It arose due to the interaction between the three-year
    limitation period in s. 138.14 of the
OSA
and s. 28(1) of the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6 (
CPA
). The latter
    provides that the limitation period applicable to a cause of action
asserted
in a class proceeding is suspended in favour of
    a class member on the
commencement
of the class
    proceeding.

[12]

Did
    this mean that the three-year limitation period was interrupted, in favour of
    the representative plaintiff and all class members, by the commencement of a
    class proceeding, asserting the statutory remedy under s. 138.3 of the
OSA
and declaring an intention to seek leave to proceed with such an action?
[2]

[13]

This question spawned
    considerable litigation, including two appeals to this court. In the first,
    involving this proceeding, three judges of this court determined that s. 28(1)
    of the
CPA
did not suspend the limitation period until leave was
    actually granted:
Sharma v. Timminco Ltd.
, 2012 ONCA 107, 109 O.R.
    (3d) 569 (
Timminco #1
). Accordingly, the appellants claim was presumptively
    time-barred. His application for leave to appeal to the Supreme Court of Canada
    was dismissed: [2012] S.C.C.A. No. 157. The result was that the appellants
    class action was effectively at an end, at least insofar as it asserted the
OSA
cause of action.

[14]

The second appeal to
    this court on the same issue was in
Green v. Canadian Imperial Bank of
    Commerce
, 2014 ONCA 90, 118 O.R. (3d) 641 (
Green (OCA)
). There,
    a five-judge panel of this court reversed
Timminco #1
, holding that
    the
OSA
limitation period was interrupted by the commencement of the
    class proceeding, regardless of when leave was actually granted.

[15]

On December 4, 2015, the
    Supreme Court reversed this courts decision in
Green (OCA)
. The
    Supreme Court held that the limitation period was only tolled by the
    commencement of an action asserting the statutory remedy after leave had been
    granted. It acknowledged the possibility that leave could be granted
nunc
    pro tunc
to the date of the filing of the leave motion. In fact, the claim
    in
Green
was preserved at least partly on that basis. Later in these
    reasons, I will explain how this result was achieved.

[16]

Having described the
    statutory and jurisprudential context, I now turn to this action.

(2)

The history of this action

[17]

In March 2007, Timminco
    announced that it had developed a proprietary process for the production of
    silicon suitable for use in solar panels and that it had secured long-term
    contracts with customers. The beginning of the class period is marked by the
    first alleged misrepresentation, a press release dated March 17, 2008,
    announcing Timmincos financial results for the fourth quarter of 2007 and for
    the year ended December 31, 2007.

[18]

The price of
    Timmincos shares doubled between the date of the press release and November
    11, 2008, the end of the class period, rising from about $17 to about $35. But
    corrective disclosures were made in November 2008, and the share price fell
    dramatically.

[19]

The stock was
    ultimately de-listed by the Toronto Stock Exchange in February 2012, and the
    company went into protection under the
Companies Creditors Arrangement Act
,
    R.S.C. 1985, c. C-36 (
CCAA
).

[20]

The statement of claim
    in this proceeding was filed on May 14, 2009 by Ravinder Sharma, a Timminco
    shareholder. He sought certification of a class action asserting a statutory
    claim for misrepresentation by Timminco and its consultants, Photon Consulting
    LLC (Photon) and Rogol Energy Consulting LLC (Rogol), in public statements
    and disclosure documents between March 17, 2008, the date of the first press
    release and a conference call on May 29, 2008. He also asserted an intention to
    seek leave to proceed with the statutory cause of action under Part XXIII.1 of
    the
OSA
.

[21]

Another law firm
    commenced a second action on behalf of a different Timminco shareholder in June
    of 2009. A carriage dispute took place between the two law firms as to which
    action should proceed. On October 29, 2009, the motion judge awarded carriage
    to the appellants counsel in this action.

[22]

As I will describe
    below, for the next 15 months, the appellants counsel focused on attempting to
    settle the action, probably due to Timmincos deteriorating financial
    condition. Little was done to advance the proposed class action. Meanwhile, however,
    the limitations clock was potentially ticking on the
OSA
cause of
    action.

[23]

On January 31, 2011,
    Justice Rady of the Superior Court of Justice released a decision in
Nor-Dor
    Developments Ltd. v. Redline Communications Group Inc.
, 2011 ONSC 591. In that
    case, the plaintiff had commenced a class action, stating an intention to assert
    a claim for secondary market misrepresentation under Part XXIII.1 of the
OSA
.
    While the plaintiff took the position that the limitation period had been
    tolled by the commencement of the action, it sought permission to file the
    proposed Part XXIII.1 statement of claim before the leave motion was
    adjudicated, because it was concerned that the limitation period might expire
    before the leave motion could be heard.

[24]

Justice Rady held that
    she had no jurisdiction to grant this form of substantive relief, which
    essentially asked for a declaration that the limitation period was tolled even
    before the court had granted leave. She found it significant that the section
    provided that no action could be
commenced
before
    leave had been granted. Significantly, she observed that [i]t may well be that
    if the court gives the plaintiffs leave to commence an action for relief under
    Part XXIII.1, it would be appropriate at that time to ask that the order be
    made
nunc pro tunc
in order to regularize what the plaintiffs have
    done to date. However, she found that it was premature to consider that form
    of relief.

[25]

On February 25, 2011, perhaps
    because of the decision in
Nor-Dor
, the appellants counsel in this
    case wrote to the respondents counsel raising the issue of the limitation
    period, and suggesting an attendance before the case management judge and the possibility
    of an agreement to toll the
OSA
limitation period pending the
    determination of the leave motion. On February 28, 2011, appellants counsel
    wrote to the case management judge, requesting a conference on an urgent basis,
    noting that it was possible that the limitation period would expire on March
    17, 2011 and asking that a schedule be set for the motions for certification
    and leave.

[26]

A case conference was held
    on March 10, 2011. The motion judge refused to accelerate the leave and
    certification motions, because he found it would not be procedurally fair to
    the respondents to do so. Instead, he directed the appellant to bring a motion
    for conditional leave to commence an action under the
OSA
.

[27]

On March 14, 2011, the
    appellant served a motion, returnable on March 25, 2011, seeking, among other
    things, a declaration that the three-year limitation period in s. 138.14 of the
OSA
was suspended by the operation of s. 28 of the
CPA
, an
    order granting conditional leave to commence an action under s. 138.8(1) of
    the
OSA
and an order tolling the limitation period.

[28]

The motion was argued
    on March 25, 2011. As the argument developed, the appellants request for
    conditional leave was not pursued. Nor did the appellant request
nunc pro
    tunc
relief. The submissions focused on whether s. 28 of the
CPA
had
    the effect of suspending the limitation period in s. 138.14 of the
OSA
on the commencement of a putative class action claiming the statutory remedy,
    even though leave had not been obtained and the appellant had only asserted an
    intention to obtain leave.

[29]

The motion judge
    released his decision on March 31, 2011:
Sharma v. Timminco Ltd.
, 2011
    ONSC 8024. He found that because the statement of claim referred to an
    intention to commence an action under Part XXIII.1 of the
OSA
, s. 28
    of the
CPA
suspended the operation of the limitation period in s.
    138.14 of the
OSA
.

[30]

After this decision,
    the appellant served his material for certification and for leave to pursue the
    statutory claim. This occurred three years and two days
after
the last alleged misrepresentation identified in the statement of claim.

[31]

But the respondents
    appealed the motion judges decision. That resulted in this courts ruling in
Timminco
    #1
, allowing the appeal and determining that s. 28(1) of the
CPA
did not suspend the limitation period until leave was actually granted. Merely
    asserting an intention to seek leave was not sufficient. This court noted that
    its conclusion was consistent with the purpose of s. 138.14 of the
OSA
,

which was designed to ensure that
    secondary market claims would be pursued with dispatch. This, in turn, required
    the leave motion to be brought expeditiously.

[32]

Leave to appeal to the
    Supreme Court of Canada was refused: [2012] S.C.C.A. No. 157. The appellants
    statutory claim was time-barred.

[33]

As I have noted, in
Green
    (OCA)
, a five-judge panel of this court subsequently found that
Timminco
    #1
had been wrongly decided. It held that when a plaintiff in a proposed
    class action pleaded a cause of action based on s. 138.3 of the
OSA
,
    together with the facts that found that claim, and further pleaded the intent
    to seek leave to commence an action under the
OSA
,
then that claim was "asserted" for the purpose of s. 28 of the
CPA
,
    and the limitation period was thereby suspended for all class members.

[34]

This courts decision
    in
Green (OCA)
was appealed to the Supreme Court of Canada. Mr. Pennyfeathers
    application for leave to intervene in that appeal was dismissed on December 17,
    2014: [2014] S.C.C.A. No. 137.

[35]

On December 5, 2015,
    the Supreme Court of Canada released its decision in
Green (SCC)
. A
    four-three majority of the court effectively reversed the five-judge panel of
    this court on the operation of s. 28 of the
CPA
, but concluded that
    the court has discretionary jurisdiction to make an order
nunc pro tunc
in appropriate cases. A different majority decided that the
Green
action
    would survive, but for different reasons. I will discuss the Supreme Courts
    reasons in the next section.

[36]

To fast forward,
    however, after
Green (SCC)
, the appellant stated that he intended to
    bring a motion for leave to assert the statutory cause of action and to seek
nunc
    pro tunc
relief. The respondents brought a motion for a declaration that
    his claim was barred by
res judicata
and related doctrines asserting
    that the same issue had been litigated in the March 2011 motion. The appellant
    brought a motion for leave to commence the class action
nunc pro tunc
so as to avoid the limitation period. The motion judge agreed with the
    respondents on
res judicata
, but exercised discretion to hear the
    motion nevertheless. However, he held that it was not appropriate to grant
    leave
nunc pro tunc
.

(3)

Green (SCC)

[37]

To restate and refine
    the issue on this appeal, it is whether
nunc pro tunc
relief was
    available to the appellant and, if so, whether the motion judge made an error
    in principle in the exercise of his discretion in refusing it. This issue involves
    the application of
Green (SCC)
.

[38]

Green (OCA)
and
Green (SCC)
dealt with three appeals involving the
OSA
limitation
    period. In each case, leave to commence the statutory claim had not been
    obtained within the limitation period. The cases were
Green v. Canadian
    Imperial Bank of Commerce
, 2012 ONSC 3637, 29 C.P.C. (7th) 225;
Silver
    v. IMAX Corp.
, 2012 ONSC 4881; and
Trustees of the Millwright Regional
    Council of Ontario Pension Trust Fund v. Celestica Inc.
, 2012 ONSC 6083,
    113 O.R. (3d) 264.

[39]

In
Green (SCC)
,
    a majority of the Supreme Court comprised of Côté J. (McLachlin C.J. and
    Rothstein J. concurring) and Cromwell J. (who gave separate reasons) found that
    s. 28 of the
CPA
did not suspend the operation of the limitation
    period for a statutory claim for misrepresentation before leave had been
    granted under s. 138.8 of the
OSA
. This was consistent with the
    conclusions reached in this courts decision in
Timminco #1
. The
    effect of this was that the three appeals before the Supreme Court were
    time-barred, unless
nunc pro tunc
relief was available, because the
    limitation period had expired in all three cases before leave had been granted.

[40]

The minority,
    Karakatsanis J., with whom Moldaver and Gascon JJ. concurred, would have
    dismissed the appeals, finding that the pleading of the statutory cause of
    action in the statement of claim amounted to the assertion of the statutory
    cause of action for the purpose of s. 28 of the
CPA
and had the effect
    of suspending the limitation period as of the date of filing the claim. The minority
    did not find it necessary to consider the application of the
nunc pro tunc
doctrine.

[41]

There was disagreement
    among the judges who considered
nunc pro tunc
on its application to the
    three cases before the court and the opinions of Côté J. on the one hand and
    Cromwell J. on the other, require some scrutiny to identify how that doctrine
    applies.

[42]

Côté J. gave the lead
    judgment. She pointed out that courts have inherent jurisdiction to make orders
nunc pro tunc
, or, as she said in common parlance, to backdate their
    orders. But she identified an important limit on that jurisdiction in the case
    of the failure to obtain leave to commence an action before the expiry of a
    limitation period. The parties refer to this limit as a red-line rule. The
    red-line rule
requires leave to be sought within the
    limitation period
in order for the courts order to be made
nunc pro
    tunc
. An application for leave
nunc pro tunc
cannot succeed if the
    application is made
after
the expiry of the limitation
    period. Such an order would be of no use to the plaintiff because it would be
    retroactive to a date after the expiry of the limitation period.

[43]

Côté J. noted that the
    case law had identified a number of non-exhaustive factors, none of which was
    determinative, to be considered in deciding whether to grant a
nunc pro
    tunc
order. These included: (a) lack of prejudice to the opposing party;
    (b) the order would have been granted had it been sought at the appropriate
    time; (c) the irregularity was not intentional; (d) the order would cure the
    irregularity; (e) the delay was caused by an act of the court; and (f) the
    order would facilitate access to justice. However, leave will not be granted
nunc
    pro tunc
when it would undermine the purpose of the limitation period.

[44]

Côté J. also
    identified the standard of review, observing that a deferential standard
    applies to a judges discretionary decision to grant an order
nunc pro tunc
.
    An appellate court can intervene if the judge has exercised his or her
    discretion on an erroneous principle or has failed to exercise that discretion.
    But if the judge has given sufficient weight to all the relevant circumstances,
    an appellate court must defer.

[45]

Cromwell J. agreed
    with Côté J.s statement of principles, but disagreed with her conclusions on
    the application of those principles in the
Green
and
IMAX
appeals.
    He agreed with her reasons in
Celestica
.

[46]

In
Green
, Côté
    J. would not have granted leave
nunc pro tunc
primarily because, in
    her view, the plaintiffs had waited a year and a half after filing their
    statement of claim before bringing a motion seeking leave under s. 138.8(1) and
    did nothing to seek an expedited hearing of the leave motion or to address the
    limitation period issue, simply assuming that they would be granted leave. She
    observed, at para. 100: A plaintiff cannot simply assume that he or she will
    be granted relief, doing nothing although knowing that the limitation period is
    going to expire. Justice Côté adverted to the leave requirement and the
    limitation period as central to the delicate balance struck by the
    legislation, which reflected a desire to ensure that unmeritorious litigation
    be brought to an early end in the litigation process.

[47]

Cromwell J. would not
    have interfered with the motion judges conclusion in
Green
that he
    would have granted
nunc pro tunc
relief had he found it available. The
    motion judges reasons included: (a) the plaintiffs had been diligent in
    pursuing their action; (b)
Timminco #1
was a case of first impression
    and was a surprise to the bar; (c) the exercise of discretion would not
    undermine the purposes of the limitation period; (d) it would discharge the
    courts duty to protect the rights of unrepresented class members; and (e) the
    plaintiffs claim had been found to have a reasonable prospect of success.

[48]

In
Imax
, Côté
    J. upheld the motion judges exercise of discretion to grant a
nunc pro
    tunc
order as against the defendants who were parties to the original
    statement of claim. An important factor influencing that discretion was the
    motion judges finding that the motion for leave had been brought promptly and had
    been actively and vigorously pursued. Nevertheless, Côté J. was highly critical
    of the plaintiffs, who waited two years after leave was granted to file their
    statement of claim. Justice Côté would not have granted a
nunc pro tunc
order against the defendants who were added to the statement of claim more than
    two years after leave was granted.

[49]

Justice Cromwell, on
    the other hand, would have upheld the motion judges exercise of discretion as
    regards to both the old and new defendants.

[50]

Finally, in
Celestica
,
    Côté J. found that leave
nunc pro tunc
was not available because the
    motion for leave was not filed before the expiry of the limitation period. She
    found that it was not open to the motion judge to apply the doctrine of
    special circumstances to salvage the claim. She would, therefore, have allowed
    the appeal. Justice Cromwell agreed with this disposition.

[51]

In the result, in
Green
,
    the combined effect of Justice Cromwells decision and the reasons of the three
    minority judges were to find that the statutory claim was not time-barred and
    to dismiss the appeal. In
IMAX
, the combined effect of all three sets
    of reasons was that all the plaintiffs
OSA
claims were not
    time-barred and the appeal was dismissed. And in
Celestica
, the
    majority, consisting of Côté J. (McLachlin C.J. and Rothstein J. concurring)
    and Cromwell J., allowed the appeal.

B.

The Motion Judges Reasons

[52]

I now turn to the
    motion judges reasons in the case at bar.

(1)

Issue estoppel and abuse of process

[53]

The motion judge held
    that although the appellants
nunc pro tunc
argument was barred by
    issue estoppel and by the abuse of process doctrine, he nevertheless had discretion
    to hear it, relying in part on
Penner v. Niagara (Regional Police Services
    Board)
, 2013 SCC 19, [2013] 2 S.C.R. 125, at paras. 29-31. He stated, at
    para. 76:

In the circumstances of the immediate case, it offends
    principles of fundamental justice that the fate of Mr. Pennyfeathers statutory
    claim should be determined by court decisions after hearings in which he did
    not have an opportunity to be heard. The Supreme Court denied Mr. Pennyfeather
    leave to appeal the decision ruling his claim untimely, and it denied him leave
    to intervene in the appeal that restored the decision that his claim was
    untimely. Having denied him a seat at the table where the fate of his statutory
    claim was to be determined to be [ ] statute-barred, I find it unfair for any
    court to make an adverse and technical determination about Mr. Pennyfeathers
    possible entitlement to an order
nunc pro tunc
when he has not argued
    his case nor had an opportunity to offer an explanation for his handling of the
    case. The position of a person seeking a
nunc pro tunc
order is
    idiosyncratic, and the idiosyncrasies of Mr. Pennyfeathers circumstances were
    never argued until the motion now before the court.

[54]

The motion judge
    observed that the appellants
nunc pro tunc
assertion was not argued
    at the March 2011 motion and, although the ability of a court to make an order
nunc
    pro tunc
was addressed in
Green (SCC)
, the appellant had been
    denied leave to intervene in that appeal. The motion judge stated, at para. 77,
    that Mr. Pennyfeathers voice on the issue of
nunc pro tunc
has not
    been heard until the motion now before the court. He, therefore, exercised his
    discretion to hear the request for leave under the
OSA
.

(2)

Leave
Nunc Pro Tunc

[55]

The motion judge then turned
    to the appellants request for leave
nunc pro tunc
, having regard to
    the principles set out in
Green (SCC)
.

[56]

The motion judge
    found, at para. 94, that because the appellant had not sought leave prior to
    the expiry of the three-year limitation period, it was not appropriate to grant
    leave
nunc pro tunc
. The appellants motion for conditional leave in
    March 2011 was not a leave motion and a leave motion was never scheduled.

[57]

Furthermore, he stated,
    at para. 95, that the limitation period in the
OSA
is an absolute
    limitation period that is not diluted by principles of discoverability. The
    policy behind it is to put a premium on finality that will exculpate
    defendants of liability notwithstanding wrongdoing. Granting the appellant
    leave
nunc pro tunc
would be contrary to the purpose of s. 138.14 of
    the
OSA
because counsel for the appellant knew about the respondents
    alleged misrepresentations for over three years before finally bringing a
    motion for leave.

[58]

Applying the equitable
    factors from
Green (SCC)
, the motion judge held that, although counsel
    for the appellant had acted in accordance with the prevailing wisdom that s. 28
    of the
CPA
operated to suspend the limitation period, counsels diligence
    was misdirected. There was no adequate explanation for not advancing the
    proposed class action on the parallel tracks of litigation and settlement.

[59]

It was not clear that
    the respondents were not prejudiced in their ability to defend the action by
    the passage of time. The respondents could not be faulted for refusing to
    abandon the limitation defence and they did nothing to induce the appellant to
    believe that he did not have to worry about the expiry of the limitation
    period.

[60]

Finally, there had
    been no determination of whether the class action had a reasonable possibility
    of success under s. 138.8 of the
OSA
, and so it was not possible to
    rely on the prospects of success to support a
nunc pro tunc
order.

C.

The PARTIES submissions

[61]

The following overview
    of the submissions of counsel will set the stage for the analysis that follows.

[62]

The appellants
    central submission is that in finding that he did not meet the red-line rule
    for equitable relief in
Green (SCC),
the motion judge erred by
    overlooking the fact that the appellants motion for conditional leave was
    delivered on March 14, 2011, three days before the expiry of any limitation
    period. The motion judge also erred, he says, in stating that his conditional
    leave motion was abandoned.

[63]

The appellant says
    that delivery of the conditional leave motion on March 14, 2011 established the
    
tunc
 (then) to which an order granting leave could be made retroactive:
nunc pro tunc
(now for then). The motion judge failed to recognize
    this and then failed to properly exercise his discretion to grant
nunc pro
    tunc
relief.

[64]

He says the motion
    judge made two principal errors in the exercise of his discretion in applying
    the test for
nunc pro tunc
relief in
Green (SCC)
. First, the
    motion judge erred in fact and law by not finding that the appellant had
    pursued his claim with diligence. Instead, he found that the appellant had been
    neither dilatory nor assiduous in prosecuting the action. The appellant says
    that this observation was made with the benefit of hindsight and failed to give
    adequate consideration to the fact that he was acting in accordance with the
    prevailing professional and judicial wisdom.

[65]

Second, he submits
    that the motion judge made an egregious error in principle by failing to give
    any weight to an important factor  the strength of the plaintiffs case 
    which he says was plainly meritorious. Instead of considering the merits of the
    case, on which the appellant adduced evidence and the respondents none, the
    motion judge treated the merits as neutral because the merits had not been
    tested in a leave motion.

[66]

In addition to these
    errors, the appellant says that the motion judge also failed to consider that:
    (i) it was his own act (which the appellant characterizes as an act of the
    court), in refusing to schedule the leave motion which caused the appellant to
    miss the red-line date; (ii) there would be no prejudice to the respondents
    if
nunc pro tunc
relief were granted; and (iii) the court has an
    overriding duty to protect the interests of class members.

[67]

An alternative
    submission, not made in the court below, was that the limitation period had not,
    in fact, expired because the Photon report remained on Timmincos website until
    it was taken down on November 11, 2011 and, therefore, the representation was a
    continuing one.

[68]

Finally, the appellant
    seeks leave to appeal costs. He says that the motion judge made an error in
    principle in not awarding costs to reflect his partial success on the
res
    judicata
, issue estoppel and abuse of process arguments.

[69]

The respondents
    submission is that the appellant did not deliver a leave motion prior to the
    expiry of the limitation period on May 29, 2011 and that precludes consideration
    of
nunc pro tunc
relief. Filing a motion for conditional leave was
    not sufficient to trigger the red-line rule. Alternatively, they say that if
    the red-line rule was met, the motion judge did not err in his assessment of
    the discretionary factors and his decision is entitled to deference.

[70]

On their cross-appeal,
    the Timminco respondents submit that the motion judge erred in his application
    of the principles of
res judicata
, issue estoppel, and abuse of
    process. They say that the motion judge should have declined to consider
    whether the appellant was entitled to seek
nunc pro tunc
relief
    because the conditional leave sought in March 2011 was exactly the same
    relief as was sought before the motion judge here.

[71]

In response to the
    cross-appeal, the appellant says that issue estoppel cannot apply because the
    issue of
nunc pro tunc
relief was never previously considered and
    there was no reason to raise it before the motion judge because he made it
    clear that he was going to rule that s. 28 of the
CPA
operated so as
    to suspend the limitation period in s. 138.14 of the
OSA
. There was no
    basis to request
nunc pro tunc
relief at the time.

D.

Analysis

[72]

I will begin by
    considering whether the appellants claim for
nunc pro tunc
relief is
    barred by the so-called red-line rule in
Green (SCC)
because the
    appellant did not bring a leave motion before the limitation period expired. I will
    then examine the appellants submission that the motion judge committed an
    error in principle in refusing
nunc pro tunc
relief. I conclude that
    even if the appellant can get past the red-line rule, which he might, he has
    not demonstrated that the motion judge erred in the exercise of his discretion
    to deny
nunc pro tunc
relief. I would also dismiss the appellants
    argument that the limitation period was extended by the continued presence of
    the Photon report on Timmincos website and his request for leave to appeal
    costs. As I explained earlier, although it is unnecessary to consider the
    cross-appeal, I will explain why I agree with the reasoning of the motion
    judge.

(1)

The Appeal 
Nunc Pro Tunc
Relief

(a)

The Red-line Rule

[73]

The appellant argues
    that the motion judge erred in applying the red-line rule. He says that it
    was the motion judges own act in refusing to schedule the leave motion that
    put him off-side. He submits the motion judge should also have considered the appellants
    state of readiness because draft leave materials had been provided to defence
    counsel several months before the conditional leave motion, apparently in the
    hope of promoting settlement discussions.

[74]

A great deal of effort
    has been expended by the parties on the issue of whether the March 25, 2011
    motion was or was not a leave motion which would meet the red-line rule and,
    if it was, whether the appellants request for conditional leave was
    abandoned as the motion judge found, at para. 27.

[75]

In considering this
    issue, it is appropriate to note that at a case conference on March 10, 2011,
    the appellants counsel had asked the motion judge to accelerate the scheduling
    of a certification and leave motion in view of the impending limitation period.
    The motion judge declined to do so, because he did not think it would be fair
    to the respondents, who had not been served with formal motion materials and
    had not had an opportunity to prepare responding material. He did, however,
    direct the appellant to bring a motion to seek conditional leave of the court
    to commence an action under the
OSA
and to serve that material by
    March 14, 2011. The material was duly served and the motion was argued on March
    25, 2011.

[76]

The motion sought
    both an order granting conditional leave to commence an action under s. 138.3
    of the
OSA
and an order declaring that the limitation period in s.
    138.14 of the
OSA
had been tolled pursuant to s. 28 of the
CPA
.
    The appellants factum on the motion argued that the court had the jurisdiction
    to grant relief against the limitation period or to grant conditional leave,
    until such time as the leave hearing could be scheduled.

[77]

The meaning of conditional
    leave was not clearly defined. Presumably the intent was that if leave was
    ultimately granted on the merits, it would be backdated or made
nunc pro
    tunc
to the date of conditional leave, so as to retrospectively toll the
    limitation period. In effect, the conditional leave motion was a request for
    prospective
nunc pro tunc
relief. Arguably, if leave was ultimately
    granted, the motion requesting conditional leave would serve as the 
tunc

    to which the leave order could be backdated.

[78]

Looking at what took
    place at the motion, it appears that the request for conditional leave was
    not so much abandoned, as it was superseded by the focus of all concerned,
    including the motion judge, on the issue of whether the limitation period had
    been tolled by the commencement of the class action, pursuant to s. 28 of the
CPA
.
    This was certainly a commonly-held view, shared by the motion judge, before the
    bomb shell of
Timminco #1
. In this context, it is not surprising
    that the request for conditional leave was put to one side.

[79]

Were it necessary to
    decide this issue, it is my view that the motion for conditional leave could
    have served as the anchor for
nunc pro tunc
relief, had leave
    ultimately been granted. In
Green (SCC)
, Côté J. emphasized that an
    order
nunc pro tunc
cannot be granted where it would undermine the
    purpose of the limitation period or the legislation at issue. When a limitation
    period has expired, backdating the order to a date before the motion for leave
    was brought would, on its own, frustrate the purpose of the limitation period.
    However, in the circumstances here, it is not clear to me that using the March
    2011 conditional leave motion as the anchor for an order
nunc pro tunc
would necessarily undermine the purpose of the limitation period. In any event,
    because I would uphold the motion judges discretionary refusal to grant
nunc
    pro tunc
relief, I find it unnecessary to decide this issue.

(b)

The discretionary factors

[80]

As I have noted, both Côté
    J. and Cromwell J. in
Green (SCC)
referred to the deference to be
    accorded to a judges exercise of discretion in either granting or refusing an
    order
nunc pro tunc
. Côté J. observed that if the judge has given
    sufficient weight to all the relevant considerations, an appellate court must
    defer to his or her exercise of discretion (at para. 95). But if the
    discretion is not exercised, or is exercised on the basis of an erroneous
    principle, an appellate court is entitled to intervene.

[81]

Those observations are
    particularly apt in this case because the motion judge had been case managing
    this class action since its commencement in May 2009. He heard the carriage
    motion and a motion for the production of Timmincos insurance policies and, of
    course, the original motion declaring that the limitation period was tolled by
    the operation of s. 28 of the
CPA
. He had case managed other securities
    class actions and had lived through the roller coaster of the jurisprudence from
Timminco #1
through to
Green (SCC)
. He was well placed to
    assess the history of this action and to determine whether the equities required
    granting discretionary relief
nunc pro tunc
.

[82]

The appellant says
    that the motion judge committed errors in principle: (i) in failing to find
    that the appeal was pursued diligently; (ii) in failing to find that the appellants
    claim had merit and, instead, treating the merits as neutral; and (iii) in
    failing to find that the delay was caused by an act of the court. I will
    consider these arguments before considering two other factors, namely (iv)
    prejudice to the respondents and (v) the protection of the class.

(i)

Diligence

[83]

The appellant says the
    motion judge erred in finding that he was neither dilatory nor assiduous in
    prosecuting the action. He says that this observation failed to give adequate
    consideration to the prevailing professional and judicial wisdom of the day.

[84]

I note the
    significance of the requirement of diligence. As Côté J. observed in
Green
    (SCC)
, the purpose of the statutory limitation period was to ensure that
    leave would be sought and obtained at an early stage. This reflected a concern
    for the damage that could be done to a public issuer and its long-term
    shareholders by unmeritorious class actions, particularly if those actions were
    left to languish. The diligence of the proposed representative plaintiff in
    advancing the action towards a leave hearing is, therefore, an important
    consideration in determining whether an order
nunc pro tunc
is
    consistent with the statutory purpose.

[85]

To review the
    appellants diligence in pursuing his claim, recall that the action was
    commenced on May 14, 2009 and carriage was awarded to his counsel in October
    2009. In their affidavit in support of their carriage motion, the appellants
    counsel deposed that the case was not likely to settle and that, if granted
    carriage, they would be in a position to proceed expeditiously towards a
    leave and certification motion.

[86]

This is not what
    happened.

[87]

Mr. Sharma, who was
    then the representative plaintiff, had indicated in the summer of 2009 that he
    was unable to continue in that capacity and asked to be removed. At the time of
    the carriage motion in October 2009, counsel indicated that Mr. Pennyfeather
    was prepared to assume the role. This would, however, require a motion and the respondents
    insisted that this be done on affidavit evidence of Mr. Pennyfeathers
    suitability. Although a motion to substitute Mr. Pennyfeather as the
    representative plaintiff was served in January 2010, it was not accompanied by an
    affidavit from either Mr. Sharma or Mr. Pennyfeather. It was not until February
    2011 that the appellant asked the motion judge to schedule a motion to appoint
    Mr. Pennyfeather in Mr. Sharmas stead and this motion was heard, together with
    the conditional leave motion, on March 25, 2011.

[88]

The consequence was
    that the proposed class action effectively had no representative plaintiff, a
    fundamental requirement for certification, for some 18 months. The failure to
    attend to this most basic and essential of tasks does not reflect diligence in
    the prosecution of the action.

[89]

But this was not the
    only matter left undone. The respondents had served a demand for particulars in
    December 2009. While the appellant delivered a draft amended statement of
    claim, it did not fully respond to the respondents demand. Thus another very
    basic task, regularizing the pleading, had not been addressed.

[90]

What then was going on
    in the class action?

[91]

By the time of the
    carriage motion, in the fall of 2009, it was very clear that Timminco was in
    serious financial difficulties. It was in this context that the appellant moved
    to compel disclosure of the respondents insurance policies, for the clear
    purpose of informing settlement discussions. On February 3, 2010, the motion
    judge ordered disclosure. Leave to appeal to the Divisional Court was denied on
    April 22, 2010. On May 27, 2010, the Timminco respondents disclosed their
    insurance policies, including the limits of their coverage.

[92]

A fair reading of the
    record indicates that thereafter, between mid-May 2010 and mid-February of
    2011, very little was happening in the action other than occasional settlement
    overtures from the appellants side. In December 2010, the appellant delivered
    draft certification and leave materials, for the express purpose of facilitating
    settlement discussions. Considering the affidavit evidence of the appellants
    counsel on the carriage motion that the action was unlikely to settle, it is
    clear that the appellants strategy had changed from expeditious prosecution of
    the action to settlement.

[93]

It was in this
    context, with only three weeks before the limitation period applicable to the
    first alleged misrepresentation was to expire, on February 25, 2011, that the
    appellants counsel wrote to the respondents counsel, raising a concern about
    the potential approach of the limitation period and suggesting a tolling
    agreement. On February 28, 2011, the appellants counsel wrote to the motion
    judge on an issue of some urgency regarding a potential approaching
    limitations period in this action. The letter continued that in addition to
    discussing possible solutions to the limitation issue, counsel would be
    requesting that a timetable be set for a motion to substitute the
    representative plaintiff and the motions for certification and leave.

[94]

It is not unreasonable
    to ask, in considering the diligence factor, why the issue only became of some
    urgency shortly before the potential expiry of the limitation period. While
    the conventional wisdom may have been that s. 28 of the
CPA
would
    save the day, this did not stop some counsel from advancing their leave motions
    expeditiously. In
IMAX
, for example, the motion had been brought and
    fully argued before the limitation period expired. In other cases, including
Gould
    v. Western Coal Corp.
, in which appellants counsel in the case at bar acted
    for the representative plaintiff, a tolling agreement was negotiated with the
    defendants. Even in
Green
, where Côté J. would have refused
nunc
    pro tunc
relief, the plaintiffs had brought their motion for leave within
    the limitation period.

[95]

The motion judge found,
    at para. 18, that in prosecuting the action after the carriage motion, the appellants
    counsel were neither dilatory nor assiduous, but were practicing in
    accordance with the standard of practice at the time. But later in his
    reasons, in comparing the facts of this case to
IMAX
and
Green
,
    he observed that the case for
nunc pro tunc
relief was weaker in this
    case. The appellants diligence was misdirected  he focused his efforts on
    attempting to get at Timmincos insurance and to persuade its counsel to settle
    the case and, according to the motion judge, had no adequate explanation for
    not advancing the proposed class action on the parallel tracks of negotiation
    and prosecution of the proposed statutory claim (at para. 97).

[96]

Effectively, between
    February 2010, when the motion judge granted the appellants motion for
    production of Timmincos insurance policies, and the flurry of activity at the
    end of February 2011, nothing much appears to have been happening to advance
    the action against the Timminco respondents except for the appellants efforts
    to settle. The action was effectively moribund as regards the other respondents.

[97]

It is important to
    note that the motion judge found, at para. 97, that the respondents had done nothing
    to lull Mr. Sharma or Mr. Pennyfeather into thinking that he did not have to
    worry about the ticking limitation clock  [and] nothing to lull or induce Mr.
    Pennyfeather not to pursue the prosecution of the statutory claim and he was
    capable of pursuing the claim.

[98]

The motion judges
    conclusion that the appellant was neither dilatory nor assiduous is supported
    by the evidence. Indeed, it was a very charitable assessment of the appellants
    prosecution of the litigation. Unlike
Green
and
IMAX
, which
    had remained focused on proceeding to the leave motion, this was a case in
    which the appellant made a strategic decision to focus on settlement rather
    than on advancing the leave motion on a parallel track, as the motion judge
    found.

(ii)

Merits

[99]

The appellants second
    submission is that the motion judge made an egregious error in principle by
    failing to give any weight to the merits of the appellants case. The appellant
    says the claim is plainly meritorious. He says that the merits of the claim are
    conclusively established by the fact that Timmincos much heralded
    proprietary process was sold for a pittance in the
CCAA
asset sale.
    This demonstrates, he says, that the process was a sham.

[100]

He says that instead
    of considering the merits of the case, on which the appellant adduced evidence
    and the respondents none, the motion judge treated the merits factor as neutral
    because the merits had not been tested in a leave motion.

[101]

In my view, this
    finding was open to the motion judge. The merits of the case were untested by a
    contested leave motion. This is in stark contrast to
IMAX
where the
    claim passed the
OSA
merits test after a lengthy contested hearing on
    a voluminous record. It also stands in contrast to
Green
, where, again
    after a contested leave motion, it was found that the claim had a reasonable
    possibility of success and leave would have been granted but for the
    limitations defence.

(iii)

Act
    of the Court

[102]

The appellant
    points out that in
Green (SCC)
, Côté J. said that one factor that can
    be considered in the exercise of discretion to grant leave
nunc pro tunc
is whether delay has been caused by an act of the court. Indeed, this
    doctrine of act of the court was identified by van Rensburg J. (as she then
    was) in
IMAX
as a basis for granting
nunc pro tunc
relief when
    the limitation period was about to expire while her decision on the leave
    motion was under reserve. Even there, however, Côté J. observed that the
    plaintiffs delay in filing their action far outweighed any delays caused by
    acts of the court in respect of which a
nunc pro tunc
order might be
    justified (at para. 105).

[103]

The appellant
    asserts that the motion judge erred by failing to find that the delay was
    caused by an act of the court  the motion judges refusal to schedule the
    leave motion or to permit the delivery of a leave motion before the expiry of
    the limitation period.

[104]

In my view, the
    delay here was not caused by an act of the court  it was caused by the
    appellants decision to focus on settlement rather than to advance the
    statutory claim. It was unrealistic to expect the motion judge to schedule the
    leave motion at the eleventh hour. The motion judge gave valid reasons for
    refusing to do so.

(iv)

Absence of prejudice

[105]

Neither Côté J. nor
    Cromwell J. gave a great deal of consideration to the absence of prejudice to
    the defendants if leave were to be granted
nunc pro tunc
. In both
IMAX
and
Green,
the case had moved forward relatively expeditiously and the
    defendants had responded to the leave motion. In
Imax
, the leave
    motion was brought and fully argued before the limitation period expired. In
Green
,
    the leave motion was brought before the limitation period expired and it was
    being argued on a contested basis when
Timminco #1
was released.

[106]

In this case,
    Timminco made it clear that it would consider settlement but that the appellant
    should pursue the parallel track of advancing his claim and should proceed as
    he saw fit. The respondents clearly did not, either expressly or impliedly,
    abandon their right to rely on the limitations defence. The motion judge was
    not persuaded that the delay would not prejudice Timminco in the defence of its
    claim. In other words, the appellant has failed to demonstrate an absence of
    prejudice to the respondents.

(v)

Duty to protect the class

[107]

The appellant
    says that the motion judge erred in principle in failing to consider his duty
    to protect unrepresented putative class members who could reasonably assume
    that they could shelter under the action. This argument found favour with Cromwell
    J. in
Green (SCC),
at paras. 142-143. However, Côté J. dismissed it, at
    para. 102, observing that class members do not have more rights than the
    representative plaintiff.

[108]

It is not clear
    that this factor was argued before the motion judge. If it had been, the
    interests of the defendants and the overall policy goals of the legislation of preventing
    strike suits and ensuring that any claim is advanced expeditiously, would have
    had to be balanced against the duty to protect the class. The interests of
    unrepresented class members are a consideration in every putative class action.
    In my view, those interests could not have justified
nunc pro tunc
relief
    from the limitation period.

[109]

In summary, in
    my view, the motion judge made no error in principle in the exercise of his
    discretion not to grant
nunc pro tunc
relief. Granting such relief in
    the circumstances of this case would have been inconsistent with the purpose of
    the limitation period  to ensure that leave will be sought and obtained
    quickly (
per
Côté J., at para. 96).

(2)

The extension of the limitation period for later purchasers

[110]

The appellant
    advanced an argument on appeal that was not raised in the court below. He
    submits that the limitation period did not expire for all class members on May
    29, 2011, three years after the date of the last misrepresentation pleaded in
    the statement of claim. He submits that the Photon Report remained on
    Timmincos website until November 11, 2008 and that it gave rise to a new
    representation each day, triggering the running of a fresh limitation period
    for every class member who purchased shares between May 14, 2008, the day the
    Photon Report was posted on Timmincos website, and November 11, 2008, when the
    Photon Report was taken down. Thus, claims based on those fresh
    misrepresentations were not time-barred when the appellant ultimately filed his
    motion for leave on June 13, 2011.

[111]

The appellant
    relies on a timeline of this proceeding contained in para. 20 of the reasons of
    Côté J. in
Green (SCC)
, under the heading Judicial History and Facts
    for the various proceedings. In that timeline, Côté J. set out the date of the
    alleged misrepresentations in this action as being from March 17 to November
    11, 2008 and the expiry of the limitation period for the statutory action as
    running from March 17 to November 11, 2011.

[112]

I would reject
    the appellants submission for the following reasons.

[113]

First, and
    primarily, the appellants submission is based on a misconception of the
    operation of the statutory limitation period. It does
not
run from the date on which an individual class member saw or heard the
    misrepresentation or purchased his or her individual shares. It runs from the
    date on which the document containing the misrepresentation was
first released
 (s. 138.14(1)(a)(i)). As Côté J. noted
    in
Green (SCC),
at para. 66, the statutory limitation period was
    expressly designed to run without regard for the plaintiffs knowledge of the
    facts giving rise to the cause of action.

[114]

Thus, it is
    irrelevant to the running of the limitation period that the Photon report
    remained on Timmincos website and may or may not have been seen by persons who
    purchased shares after the date of its first release. The limitation period
    began to run against
all
purchasers of Timmincos
    shares from the date of the first release of the report.

[115]

Second, this
    theory was neither pleaded as part of the appellants case nor advanced in the
    court below. The statement of claim pleads that the respondents made
    representations during the class period which caused Timmincos share price to
    be artificially inflated. Under the heading The Misrepresentations during the
    Class Period, the appellant alleged a series of misrepresentations between
    March 17 and May 29, 2008 in statutory disclosure statements, press releases and
    conference calls with analysts and investors. These misrepresentations
    allegedly inflated the price of Timmincos shares.

[116]

The statement
    of claim identified November 11, 2008 as the end of the class period. That was
    the date on which the Photon Report was removed from Timmincos website, on the
    ground, according to the pleading, that some of the material factors or
    assumptions originally used to develop the forward-looking information in the
    Photon Report, including in respect of revenues, production line volumes and
    costs, may no longer be valid.

[117]

The removal of
    the Photon Report and other actions by Timminco were corrective statements
    and the truth emerged, according to the statement of claim. Thus, the theory
    of the appellants case was that the respondents misrepresentations
    artificially inflated the value of Timmincos shares during the class period
    and when the truth emerged at the end of the class period the share price
    came crashing down. Purchasers who acquired shares during the class period can
    avail themselves of the statutory remedy, not because they relied on the
    misrepresentations, but because the misrepresentations allegedly inflated the
    price at which they bought their shares.

[118]

Rule 25.06(8) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 requires a
    plaintiff to plead full particulars of any misrepresentation. The obvious
    purpose is to avoid surprise. Nowhere in the statement of claim does the appellant
    plead a theory of a representation after May 29, 2008 or any continuing
    representations.

[119]

In my view, the
    tables set out by Côté J. in
Green (SCC)
were simply for comparative
    purposes and cannot have been intended to state any conclusion on the expiry of
    the limitation period in this case, which was obviously not before her.

[120]

For these
    reasons, I would dismiss this ground of appeal.

(3)

The Costs Appeal

[121]

The appellant
    seeks leave to appeal the motion judges award of costs of $124,028.81 to the Timminco
    respondents and $25,330.07 to the Photon respondents. He submits that: (a)
    success was divided and there should have been no order as to costs or costs
    should have been apportioned to reflect the divided success; (b) the award
    failed to consider the policy objectives of the
CPA
; and (c) the costs
    were unreasonable for a one-day hearing with no new substantive evidence.

[122]

It has been said
    time and time again that the awarding and fixing of costs is highly
    discretionary and is afforded a high level of deference on appeal. An appellate
    court may interfere where it finds that the judge in the court below
    misdirected himself or herself on the law or made a palpable error in the
    assessment of the facts:
British Columbia (Minister of Forests) v. Okanagan
    Indian Band
, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 42;
Walker v.
    Ritchie
, 2006 SCC 45, [2006] 2 S.C.R. 428, at para. 17. Accordingly, leave
    to appeal a costs order is granted sparingly and only where there are strong
    reasons to believe that the lower court erred:
McNaughton Automotive Ltd.
    v. Co-Operators General Insurance Co.
, 2008 ONCA 597, 95 O.R. (3d) 365, at
    paras. 23-27.

[123]

Here, the motion
    judge found that, in substance, success was not divided. While he dismissed the
    respondents technical
res judicata
argument, the effect was simply to
    permit the appellant to argue his case on the merits. And the result was that
    Mr. Pennyfeathers already dead action will not rise like a legal phoenix.

[124]

He rejected the
    appellants public interest argument, based on the goals of the
CPA
,
    finding that this was high stakes class action securities litigation where the
    proposed representative plaintiff and class counsel understand the risks of the
    exposure to an adverse costs award.

[125]

The motion judge
    considered the principles governing the award of costs, including the
    principles that costs normally follow the event and that the award should
    reflect the reasonable expectations of the parties. He also considered the
    discretionary factors set out in r. 57.01. As he noted, the parties were
    litigating a claim said to be worth about half a billion dollars. He observed
    that [t]he motions and the underlying litigation are off the measuring scale
    for legal, factual, and procedural complexity and in importance to the parties
    (at para. 13).

[126]

The motion
    judges decision with respect to costs was based on his consideration of the
    relevant principles. The appellant has identified no error in principle in the
    exercise of his discretion. I would refuse leave to appeal.

(4)

The Cross-Appeal

[127]

My disposition
    of the appeal makes it unnecessary to determine the cross-appeal. I will
    nevertheless briefly explain why, in my view, the motion judge did not err in
    the exercise of his discretion to hear the appellants motion.

[128]

The cross-appeal
    raises a novel and challenging question, namely whether the principle in
Henderson
    v. Henderson
(1843), 67 E.R. 313, 3 Hare 100 (V.C.), applies to issue estoppel.
    That principle, applicable to cause of action estoppel, holds that a final
    decision of the court bars re-litigation not only of what was decided, but also
    what could and should have been decided by the court. The motion judge
    concluded that both issue estoppel and abuse of process likely applied to
    prevent the appellant from seeking
nunc pro tunc
relief because he
    could have requested that relief when he brought his conditional leave motion
    or on his previous appeal to this court.

[129]

However, there
    is a discretionary element to the application of those doctrines:
Danyluk
    v. Ainsworth Technologies Inc.
, 2001 SCC 44, [2001] 2 S.C.R. 460 and
Penner
.
    The motion judge found it was appropriate to exercise that discretion in Mr.
    Pennyfeathers favour because Mr. Pennyfeather never had an opportunity to make
    the argument. He was denied leave to appeal to the Supreme Court in the
    original
Timminco #1
case and he was not permitted to intervene in the
    appeal to the Supreme Court in
Green (SCC)
. Thus, he never had an
    opportunity to make an argument about his entitlement to
nunc pro tunc
relief and it was in the interest of justice that he be given an opportunity to
    do so.

[130]

Timminco refers
    to this courts decision in
College of Traditional Chinese Medicine Practitioners
    and Acupuncturists of Ontario v. Federation of Ontario Traditional Chinese
    Medicine Assn.
, 2015 ONCA 851, leave to appeal to S.C.C. refused, [2016] S.C.C.A.
    No. 25, for the proposition that a party cannot avoid issue estoppel by
    reframing its legal position and re-litigating what in substance was the
    same argument by giving it a different legal label. Timminco says that in this
    case, the appellant sought an order for conditional leave in March 2011,
    relying on the courts inherent jurisdiction, which is the same as its motion
    for
nunc pro tunc
with a different legal label. If the court had
    granted conditional leave, and a leave motion was subsequently heard and
    granted, the order would have been backdated to the date of conditional leave
     in precisely the same way as it would have been if leave had been granted
nunc
    pro tunc
to the date of the notice of motion.

[131]

Timminco says
    that the motion judge erred in principle in his application of
Danyluk
because this was a case in which the purposes, processes and stakes in the two
    proceedings were identical. See
Penner,
at para. 39;
Salasel v. Cuthbertson
,
    2015 ONCA 115, 124 O.R. (3d) 401, at para. 20.

[132]

Given the way
    the proceeding evolved, I have some doubt as to whether any of
res judicata
,
    issue estoppel or abuse of process applies. In any event, if they do apply, I
    would not interfere with the motion judges exercise of discretion to hear the
    motion.

[133]

It bears noting
    that at the case conference on March 10, 2011, the motion judge directed the appellant
    to bring a motion for conditional leave to commence an action under the
OSA
.
    He noted in his reasons that the appellant abandoned his request for
    conditional leave at the hearing of the motion and focused on his submission
    that s. 28 of the
CPA
suspended the operation of the limitation
    period, as the motion judge ultimately found. It is significant, however, that the
    motion judge found that the request for conditional leave was not a request
    for
nunc pro tunc
relief, was not an issue on the table at the March
    25, 2011 hearing and was not argued on that date.

[134]

It is equally
    apparent that the issue of
nunc pro tunc
relief was not raised before
    this court in
Timminco #1
.

[135]

The motion
    judges discretionary decision is subject to the standard of review set out in
Penner
,
    at para. 27:

A discretionary decision of a lower court will be reversible
    where that court misdirected itself or came to a decision that is so clearly
    wrong that it amounts to an injustice. Reversing a lower courts discretionary
    decision is also appropriate where the lower court gives no or insufficient
    weight to relevant considerations. [Citations omitted.]

[136]

In my view, the
    motion judge did not err in exercising his discretion to hear the motion for
    leave
nunc pro tunc
, because the appellant never had an opportunity to
    raise an issue which subsequent jurisprudence revealed should have been raised.
    Unlike the plaintiffs in
Green
,
IMAX
and
Celestica
,
    he did not have the opportunity to seek
nunc pro tunc
relief in the
    context of the Supreme Courts authoritative statement concerning the operation
    of the
OSA
limitation period and the availability of
nunc pro tunc
relief.

[137]

The motion judge
    acknowledged, at para. 24, that at the time he shared the conventional wisdom,
    affirmed by a five-judge panel of this court in
Green
, that s. 28 of
    the
CPA
suspended the running of the limitation period in the
OSA
.
    The motion judge was uniquely positioned to make this discretionary decision
    and Timminco has not established that he erred in principle in doing so.

E.

disposition

[138]

For these
    reasons, I would dismiss the appeal. It is unnecessary to consider the
    cross-appeal and I would dismiss it as moot.

[139]

Counsel agreed
    that costs of $50,000 should be awarded to the successful party on the appeal
    and costs of $25,000 to the successful party on the cross-appeal, both amounts
    inclusive of disbursements and all applicable taxes. In the circumstances, I
    would simply award costs to the respondents in the amount of $50,000,
    all-inclusive.

Released: G.R.S.  May 8, 2017

George R. Strathy
    C.J.O.

I agree  K.M. Weiler
    J.A.

I agree  M.L.
    Benotto J.A.





[1]
For a discussion of the background of the legislation, see also:
Ainslie v. CV Technologies Inc.
(2008),
    93 O.R. (3d) 200 (S.C.), leave to appeal to Div. Ct. granted, 2009 CanLII 7165,
    appeal discontinued, at paras. 7-13;
Silver
    v. Imax Corp.

(2009), 66 B.L.R. (4th) 222 (Ont. S.C.),
    leave to appeal to Div. Ct. refused, 2011 ONSC 1035, at paras. 225-238.



[2]

A subsequent legislative amendment now addresses this
    question. Pursuant to s. 138.14(2) of the
OSA
, the limitation
    period is suspended on the date a notice of motion for leave is filed with the
    court.


