



COURT OF APPEAL FOR ONTARIO

CITATION:

Portuguese Canadian Credit
    Union Limited v. Pires, 2012 ONCA 335

DATE: 20120518

DOCKET: C54847

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Portuguese
    Canadian Credit Union Limited,

by its
    liquidator, Deposit Insurance Company of Ontario

Plaintiff (Respondent)

and

Virgilio A. Pires

Defendant (Appellant)

Richard Campbell, for the appellant

Mark Dunn, for the respondent

Heard and released orally: May 11, 2012

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated December 14, 2011.

ENDORSEMENT

[1]

We see no error in the motion judges reasoning or in her conclusion
    that the appellants proposed counterclaim is statute-barred.

[2]

Based on the appellants own pleading, he was aware before May 2006 that
    his shares were not redeemable in the manner that he claimed had been represented
    to him.  Any losses suffered by him ultimately arose from the restrictions on
    his share redemption rights.

[3]

This admission is fatal to the appellants claim for damages for alleged
    fraud, breach of fiduciary duty and misrepresentation.    His counterclaim was
    not issued until June 16, 2010, well beyond the applicable two-year limitation
    period for these claims.

[4]

Before this court, the appellant also argues, for the first time, that
    his claim for damages for alleged breaches by the respondent of the
Securities
    Act
,
R.S.O. 1990, c. S.5, is
    not statute-barred because it is subject to a six-year limitation period under
    s. 129.1 of that Act.  We would not give effect to this argument.

[5]

Even assuming that the appellant can advance a damages claim against the
    respondent of the type asserted by him based on alleged infractions of the
Securities
    Act
, the appellant has provided no authority to support the conclusion
    that his claim is a proceeding under the Act within the meaning of s. 129.1
    so as to trigger the six-year limitation period.

[6]

In any event, we note that s. 38(1) of the
Securities Act
,
on which the appellant relies in part,
    does not appear to apply in respect of securities that are subject to
    redemption obligations.  Further, although the appellants pleading invokes s.
    38(2) of the
Securities Act
, no claim on this basis was pursued before
    the motion judge or in oral argument before this court.

[7]

In all the circumstances, the appeal is dismissed.  The respondent is
    entitled to its costs of the appeal, fixed in the amount of $5,000, inclusive
    of disbursements and all applicable taxes.

E.A. Cronk J.A.

Russell Juriansz J.A.

Gloria Epstein J.A.


