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When Is Late Too Late?

Supreme Court of Canada Clarifies Limits on Courts’ Jurisdiction to Backdate Orders

Kyle Stout
Kyle Stout

By Kyle Stout

Last December, the Supreme Court of Canada released its decision in a trilogy of class actions reported as Canadian Imperial Bank of Commerce v Green.

At issue was when the limitation period is suspended for commencing a statutory claim for secondary market misrepresentation under Ontario’s Securities Act (the “OSA”). The Court found the clock did not stop running on the limitation period under Section 138.14 of the OSA until leave was granted.

The Supreme Court also confirmed that where the plaintiff fails to commence the statutory action within the three-year limitation period under the OSA, the action cannot be saved by granting leave nunc pro tunc (backdating orders to have retroactive legal effect).

It appears that Ontario litigants failing to comply with the statutory leave requirement under the OSA (and other legislation) risk a finding that late is, in their case, too late.

The Commercial Litigation Group can help ensure that your claim is brought on time, and in accordance with any statutory leave requirements.

Kyle Stout is an associate lawyer in the Business Law Group at Nelligan O’Brien Payne LLP. His practice is focused on commercial litigation and all aspects of corporate, business and ancillary issues, including incorporations, corporate re-organizations, and mergers and acquisitions. Kyle is also a member of the Nunavut Practice Group, where he provides similar services, with particular emphasis on commercial litigation and conveyancing matters.

Kyle Stout can be reached at 613-231-8246 or via email at