In McFlow Capital Corp. v. James, the parties disagreed on whether the Limitations Act applies to oppression claims brought under the Condominium Act and the Ontario Business Corporations Act. The Court declined to resolve the issue.
I agree with the plaintiff, who argued, in the Court’s words, “that there is a clear jurisprudential consensus that the two year limitation period applies”. I see no viable argument otherwise. The Limitations Act applies to all claims pursued in court proceedings. Whether the claim is statutory is of no relevance.
The Divisional Court has confirmed that the entitlement to an order granting leave nunc pro tunc to commence a derivative action under s. 26 of the Business Corporations Act requires bringing the leave motion within the limitation period.
In 1186708 Ontario Inc. v. Gerstein, the appellants appealed from the order dismissing their motion as statute-barred arguing that the Supreme Court decision in Green (which set out the principles of the nunc pro tunc doctrine) applies only to leave applications under the Securities Act and not under other statutes.
The Divisional Court disagreed. There was no basis not to apply the Court’s analysis in Green regarding the Securities Act to the Business Corporations Act (and probably any other statute).
An appeal from a final order made under the Business Corporations Act is to the Divisional Court even where the order dismisses the proceeding as statute-barred.
In 1186708 Ontario Inc. v. Gerstein, the plaintiffs brought a motion under s. 246 of the Business Corporations Act. The motion judge found it statute-barred by the expiry of the limitation period. The Court of Appeal held that the Divisional Court had jurisdiction:
 Under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this court from “a final order of a judge of the Superior Court of Justice, except … an order from which an appeal lies to the Divisional Court under another Act” (emphasis added). Under s. 255 of the OBCA, “[a]n appeal lies to the Divisional Court from any order made by the court under this Act.”
 There is no dispute that the Order is a final order.
 Paragraph 1 of the Order flowed from a motion for leave to commence a derivative action under s. 246 of the OBCA. We acknowledge that the claim was found to be statute-barred and leave refused on that basis. We also acknowledge that the determination that the claim was statute-barred was made under the Limitations Act, 2002, not the OBCA. However, para. 1 of the Order disposed of the motion which was brought under s. 246 of the OBCA. Given the broad scope afforded to s. 255 of the OBCA in this court’s jurisprudence, it is our view that para. 1 of the Order is an order within the meaning of s. 255 of the OBCA: see Amaranth L.L.C. v. Counsel Corp. (2004), 2004 CanLII 10897 (ON CA), 71 O.R. (3d) 258 (C.A.); and Ontario Securities Commission v. McLaughlin, 2009 ONCA 280 (CanLII), 248 O.A.C. 54.