Author: Dan

Ontario: CA confirms insurers have no duty to disclose limitation period

In Usanovic v. Penncorp Life Insurance Company (La Capitale Financial Security Insurance Company), Court of Appeal has confirmed that an insurer’s duty of good faith does not require it to give notice of the limitation period to its insured.  While the legislatures of some provinces have imposed a statutory obligation to this effect on insurers, Ontario has not.  Whether it should is a matter for the legislature.

We wrote about the lower court decision here.

This was the plaintiff’s argument on appeal:

[20]      The appellant submits, however, that the insurer’s failure to inform him of the limitation period precludes it from relying on the limitation period to defend his claim. He submits that the insurer’s common law duty of good faith and fair dealing should require it to inform the insured of the existence of the limitation period.

[21]      The appellant concedes that there is no statutory obligation to this effect in Ontario. He submits, however, that this obligation flows from the insurer’s duty to give the same consideration to the insured’s interest as it does to its own interests and can be imposed through the development of the common law and need not be based on statute.

Justice Strathy rejected this argument:

[45]      The Ontario legislature might have gone further than it has, for example, by adopting the approach taken in Alberta or British Columbia. It presumably chose not to do so and, in my respectful view, the court should not impose consumer protection measures on insurers, outside the terms of their policies, that the legislature has not seen fit to require. A properly crafted regime, such as those in effect in Alberta and British Columbia, would not only have to specify the requirement to give notice, but also the consequences of failing to do so.

[46]      The consequences of the appellant’s proposed expansion of the duty of good faith are significant. The appellant’s interpretation would effectively judicially overrule the provisions of the Limitations Act, 2002 by making notice given by an insurer to an insured the trigger for the limitation period, rather than discoverability of the underlying claim. This would defeat the purpose of the statute and bring ambiguity, rather than clarity, to the process.

Ontario: no limitation period for possessory liens

In Edan Agency Inc. v. Palinkas, the Court of Appeal held that limitation periods do not “generally” run against possessory liens.  This is because such a lien is a defence, and defences are not subject to statutory limitation periods.

This is a settled point of law.  Accordingly, it’s curious that the court should have used the qualifying language of “generally”.  I’d like to know in what circumstance a possessory lien would be subject to a limitation period–I suspect there’s none.

Ontario: the Trustee Act limitation period trumps s. 18 of the Limitations Act

The Court of Appeal has held that when one joint tortfeasor has died and the other makes a crossclaim for indemnity against her estate, s. 38(3) of the Trustee Act limits the claim, not the Limitations Act’s s. 18 contribution and indemnity provision.

Justice Strathy’s decision in Levesque v. Crampton Estate is well-reasoned, and I think, correct.

Unfortunately, it missed an opportunity to resolve a limitations issue of more widespread application: whether the s. 5 discovery provisions apply to s. 18.    In Miaskowski v. Persaud, the court concluded that s. 18 is a self-contained deeming provision that imposes an absolute two-year limitation period for claims for contribution and indemnity.  The court’s analysis turns on the word “deemed” in s. 18, which, “as a declarative legal concept is a firmer or more certain assertion of the discovery of a claim than the rebuttable presumption of discovery contemplated by section 5”.

The problem with this analysis is that it fails to consider that s. 18 was expressly enacted “For the purposes of subsection 5(2) and section 15”, that is, to inform and dictate the meaning to be given to the concepts referred to in those sections when applying them.

This is the point made in detail by Justice Leach in Demide v. Attorney General of Canada et al.  Justice Leach systematically analysed the flaws in Miaskowski’s reasoning.   She concluded that the purpose of s. 18 is to provide when time begins to run for the basic and ultimate limitation periods in claims for contribution and indemnity.  It deems the day of service of the statement of claim giving rise to the claim for contribution and indemnity to be the commencement of the ultimate limitation period and the presumptive commencement of the basic limitation period.

The language Justice Strathy uses could support either construction.  He writes  that s. 18 “provides that a claim for contribution and indemnity is ‘discovered’ and, therefore, the limitation period begin to run, on the day on which the wrongdoer seeking indemnity is served with the plaintiff’s claim.”  Does this mean the limitation period begins to run presumptively, or begins to run in all circumstances?

Paragraph 17 tends to suggest that it runs in all circumstances:

[17]      Thus, the general two-year limitation period runs from the date that the party claiming contribution and indemnity is served with the claim in respect of which contribution is sought.

My hope is that when the Court of Appeal directly considers the matter, Justice Leach’s analysis will prevail.  Miaskowksi is at odds with a common sense reading of the Limitations Act as a whole, and introduces unnecessary and unhelpful complexity into the limitations scheme.

 

 

Ontario: Appointing a guardian of property doesn’t start the limitation period

 

In Shaw v. Barber, Justice McNamara held that the appointment of the Office of the Public Guardian and Trustee as guardian of property doesn’t cause a limitation period to commence:

[13]           […] Where [the parties] disagree completely is when the six month limitation period for a claim for support under Section 61(1) of the Succession Law Reform Actbegins to run.

[14]           The first point that needs to be made is that under the Limitations Act the six month limitation period under the Succession Law Reform Act is incorporated into the act by Section 19(1) of the Limitations Act. That section provides that any limitation period set out in or under another act applies as long as the provision establishing it is listed in the schedule to the Limitations Act. There is no issue that this particular limitation period is in that schedule.

[15]           It is also common ground that the limitation period in question does not run in the circumstances set forth in Section 7(1) of the Limitations Act.That section provides:

7 (1) the limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim.  2002, c. 24, Sched. B, s. 7 (1).

[16]           The six month limitation, then, did not run while Ms. Shaw was incapable of commencing a proceeding because of a mental condition and was not represented by a litigation guardian in relation to the claim (emphasis added).

[17]           The Estate argues that after its appointment as Ms. Shaw’s statutory guardian of property the OPGT had the authority to act as litigation guardian and were then under an obligation to advance a claim within a six month period of their appointment.

[18]           That argument, in my view, is flawed.

[19]           There is no mechanism in the Limitations Act for the self-appointment of a litigation guardian. To do that, regard must be had to the Rules of Civil Procedure. A number of provisions are relevant.

[20]           First is Rule 7.01(1) which provides as follows:

7.01  (1)  Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.  O. Reg. 69/95, s. 2.

A proceeding, then, which includes an application, must be commenced on behalf of a party under a disability by a litigation guardian.

[21]           Next Rules 7.02(1) and 1.1(a) which provide:

7.02 (1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1).  O. Reg. 69/95, s. 3 (1).

 

 

Mentally Incapable Person or Absentee

 

(1.1)  unless the court orders otherwise, where a plaintiff or applicant,

(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;

[22]           It is important to note that while the above section directs that the guardian shall act as litigation guardian, it does not dictate when that authority is to be exercised. That, in my view, occurs once the guardian of property has determined there is a basis for exercising their authority as litigation guardian.

[23]           Surely that is appropriate. As the affidavit of counsel at the Office of the Public Guardian and Trustee discloses, once they are appointed statutory guardian of property in a factual situation such as existed here, they begin an investigation into the entire matter. That can be, as the affidavit discloses, a time consuming process because there are usually information gaps because of the client’s incapacity which require the OPGT to be reliant on third party information with a need to be verified. The initial investigation is done by a client representative and if the situation warrants it, the matter is then referred to counsel in the OPGT’s office which in this case occurred in October of 2015. According to the evidence, further investigation continued under counsel’s direction exploring options available. Outside counsel was formally retained by the OPGT on May 6, 2016. The application was brought in August.

[24]           Moving carefully and cautiously prior to commencing litigation at public expense would require a thorough investigation of the facts and legal options available. As counsel in his affidavit points out, the client they act for has little capacity to properly advise them of her circumstances, so they have to rely on third party information which may support or not support or be neutral towards the incapable person’s position. I agree with counsel that imposing a limitation period commencing as of the OPGT’s appointment as guardian of property is not only contrary the wording of the Limitations Act, but would also create impossible timelines thus creating the potential for injustice being done to vulnerable individuals.

Ontario: parties may exclude contribution and indemnity claims despite s. 18 of Limitations Act

In Weinbaum v. Weidberg, the Divisional Court held that s. 18 of the Limitations Act, which prescribes the limitation of claims for contribution and indemnity, does not apply to contractual limitation periods.  It remains available to contracting parties to limit the scope of liability in a contract.  The right of a party to claim contribution and indemnity against another party is lost where a contract extinguishes a plaintiff’s right to advance a claim.

Ontario: claims for the return of condo deposits subject to ten year limitation period

The Court of Appeal has held that a claim for the return of deposits advanced toward the purchase of a condo unit is subject to the ten year limitation period in s. 4 of the Real Property Limitations Act.

Justice Epstein’s analysis in Harvey v. Talon International Inc. is refreshingly methodical and lucid.  It begins with the governing principle of statutory interpretation:

[40]      This is a matter of statutory interpretation. Statutory interpretation is governed by the approach described in Elmer Driedger,Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Principles Applied

[41]         Section 4 of the RPLA provides as follows:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[42]         When those aspects of s. 4 of the RPLA that do not apply to this case are removed, it provides that:

No person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it

[43]         Thus, there are 3 requirements in s. 4: an “action”, to “recover” and what must be recovered is “land”.

[44]         An action is defined in s. 1 of the RPLA to include “any civil proceeding”.

[45]         “Recover” is defined in legal dictionaries as “gaining through a judgment or order”. This was the definition adopted for the use of “recover” in s. 4 in McConnell v. Huxtable, 2014 ONCA 86 (CanLII), 118 O.R. (3d) 561, at paras. 16-20, specifically, at para. 17, where this Court noted that the English Court of Appeal has held that the expression “to recover any land” in comparable legislation “is not limited to obtaining possession of the land, nor does it mean to regain something that the plaintiff had and lost. Rather, “recover” means to ‘obtain any land by judgment of the Court’”

[46]         I agree with the application judge’s approach on this point. This is clearly an action to recover.

[47]         The remaining question is whether what Ms. Yim seeks to recover – her deposit – is “land”. The definition of land in s. 1 of the RPLA is as follows:

“land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency;

[48]         In my view, the application judge was also correct in concluding that an application for the return of the deposit was an action for the recovery of “land”; specifically the recovery of “money to be laid out in the purchase of land”.

[…]

[51]         In support of this conclusion, I note that several cases have clarified the relationship between claims for damages and claims covered by the RPLA. The Supreme Court in Canson Enterprises Ltd. v. Boughton & Co., 1991 CanLII 52 (SCC), [1991] 3 S.C.R. 534, defined damages as “a monetary payment for the invasion of a right at common law”. In Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc., 2015 ONSC 1067 (CanLII), the plaintiff sought damages based off the defendant’s failure to meet its obligations under a Shared Services Agreement. Perell J., beginning at para. 49, noted that the fact that real property is incidentally involved in an action does not necessarily mean that the action is governed by the RPLA. Among the cases he cited was Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., 2012 ONCA 845 (CanLII). In that case, this Court made the following comment, at para. 7:

Finally, we do not think that the [RPLA] applies to the case as framed by the appellant. In its Statement of Claim, the appellant frames its action as one for damages flowing from the respondents’ negligence, breach of contract, conflict of interest, and breach of duty of care, fiduciary duty and statutory duty. None of these relates to the categories of actions encompassed by the [RPLA].

[52]         Thus, had Ms. Yim’s claim been one primarily seeking damages, for example breach of contract, her application would be statute-barred. This would be true even if the claim for damages incidentally related to real property, specifically the condominium that was the subject of her APS. Claims for damages do not fit within the definition of “land” in the RPLA.

[53]         However, Ms. Yim is not seeking damages. She advances a specific claim under a provision in the Act, a provision that only allows for the return of her deposit and interest, not damages. The Tax Court defined a deposit in Casa Blanca Homes Ltd. v. R., 2013 TCC 338 (CanLII), as “a pool of money retained until such time as it is applied in partial payment or forfeited”. As noted by the Alberta Court of Appeal in Lozcal Holdings Ltd. v. Brassos Development Ltd. (1980), 1980 ABCA 72 (CanLII), 111 D.L.R. (3d) 598, “a genuine deposit ordinarily has nothing to do with damages, except that credit must be given for the amount of the deposit in calculating damages”.

[54]         This leads me to the consideration of “money to be laid out in the purchase of land”, a phrase on which there is scant jurisprudence. However, in my view an action for the return of a deposit fits comfortably within its plain meaning. Frankly, I struggle to understand what would fit within this phrase if not an action such as this.

[55]         On the basis of the foregoing analysis, I conclude that Ms. Yim’s application is not statute-barred. This is also true of the amendment of her initial application to specifically claim statutory rescission. As her application is covered by s. 4 of the RPLA, the applicable limitation period is ten years. The application is an action, which is defined as any civil action. She seeks “recovery”, which has been defined as “gaining through a judgment or order”. And the recovery she seeks is of “land”; namely, her deposit, which is money laid out in the purchase of land.

[56]         I would therefore not give effect to this ground of appeal.

Ontario: a claim for common area fees is subject to the RPLA

In 2373322 Ontario Inc. v. Nolis, Justice Broad held that a claim by a landlord against a tenant for failure to pay common area maintenance charges under a commercial lease is subject to the six year limitation period in s. 17 of the Real Property Limitations Act.

The decision includes a useful summary of the relevant principles:

[57]           The tenant submits that all or a portion of the landlords’ claim for arrears of additional rent is barred by the Limitations Act, 2002 S.O. 2002 c. 24, Sch. B, which provides for a two year limitation period for bringing action for an injury, loss or damage that occurred as a result of an act or omission. The tenant submits that the Limitations Act, 2002 applies to the landlords’ claim and not the Real Property Limitations Act R.S.O. 1990, c. L.15 (the “RPLA”) as it does not constitute a claim for “rent” under the RPLA.

[58]           It is noted that, pursuant to ss. 2 (1)(a) of the Limitations Act, 2002, that Act applies to any claim to which the RPLA does not apply.

[59]           In the case of Pickering Square Inc. v. Trillium College Inc. 2014 ONSC 69 (S.C.J.) Mew, J. held, at para. 27, that with the enactment of theLimitations Act, the Legislature created a single, comprehensive general limitations law that is to apply to all claims for injury, loss or damage except, in relevant part, when the RPLA specifically applies, and that accordingly, the application of the Limitations Act should be construed broadly and the RPLAnarrowly.

[60]           Justice Mew conducted a careful review of the historical and current meanings of “rent” and concluded that “rent” in s. 17 of the RPLA means “the payment due under a lease between a tenant and landlord as compensation for the use of land or premises.”

[61]           S. 17 of the RPLA provides as follows:

17. (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent. R.S.O. 1990, c. L.15, s. 17 (1).

[62]           None of the cases cited by the tenant in the case at bar, in support of its submission that the landlords’ claim in this case does not constitute “rent”, dealt with claims for common area maintenance charges of the nature claimed by the landlords in this case. The claims under consideration in Pickering Square were for damages for the tenant’s failure to occupy and carry on business at the premises and resulting from the tenant’s failure to restore the premises to the required condition at the end of the lease term. The claims in Bill Co. v. Yellowstone Property Consultants Corp. 2012 ONSC 5116 (CanLII), 2012 ONSC 5116 (S.C.J.) similarly constituted claims for damages. The claim in Coffee Culture Systems Inc. v. Krukowski 013 ONSC 1588 (S.C.J.) (S.C.J.) was by the tenant against the landlord for breach of the lease.

[63]           In Toronto Standard Condominium Corporation No. 1487 v. Market Lofts Inc. 2015 ONSC 1067 (CanLII), 2015 ONSC 1067 (S.C.J.) Perell J. stated at para. 58 “that the parties to a lease described a payment as rent or additional rent is not determinative of whether the charge is a rent charge, and if it is just a contractual charge it will be governed by the Limitations Act, 2002.”

[64]           In contrast to the cases cited by the tenant, common area charges of the nature claimed by the landlords in the present case were found to constitute “rent” for the purpose of the RPLA in the case of Ayerswood Development Corp. v. Western Proresp Inc. 2011 ONSC 1399 (CanLII), at para. 31.

[65]           Although the characterization by the parties of “additional rent” as” rent” in the lease, as amended, is not determinative, I find that the additional rent, constituting “CAM charges” is properly characterized as “payments due under a lease between a tenant and landlord as compensation for the use of land or premises” and therefore constitutes “rent” for the purposes of the RPLA, which provides for a six year limitation period. Conversely, even if my conclusion, as set forth above, that the parties did not intend, by the amendment agreement, to exclude “additional rent” from “rent” under the lease is wrong, the landlords’ claim for additional rent would still constitute “rent” for the purposes of the RPLA.

Ontario: the application of s. 11 of the Limitations Act

In Victory v. Sattar, the court held that a formal agreement is unnecessary to engage s. 11 of the Limitations Act.  Agreement is inferable from the parties’ conduct.

Section 11 provides that if a claimant and the party against whom the claim is made agree to the assistance of an independent third party in resolving the claim, the limitation period doesn’t run until the date the claim is resolved, the resolution process ends, or one party withdraws or terminates the agreement.

The conduct of the parties in Victory demonstrated their agreement to obtain the assistance of an independent third party, the Baha’i National Spiritual Assembly and the Universal House of Justice.  This engaged s. 11:

[51]           Section 11 provides that if a claimant and the one against who the claim is made have agreed to have an independent third party assist them in resolving the claim, then the limitation period does not begin to run until the date when the claim is resolved, the attempted resolution process is terminated, or one party withdraws or terminates the agreement.  Here, there is no resolution.  While the letter itself is not in evidence, it is clear that on July 19, 2012 Sattar indicated he was no longer prepared to take part in the process.  Accordingly, the limitation period begins to run again from that date.  It is just over six months from July 19, 2012 to January 24, 2013 when the claim was issued.

[52]           Parviz argues that the limitation period initially started on July 7, 2010 when Sattar made his last payment to him pursuant to the Toronto agreement.  Sattar does not strenuously disagree.  Even if the limitation period was to initially start on May 20, 2010 it would not change the result.  Parviz argues that the limitation period stopped running on August 14, 2011 when Sattar sent his defence and claim letter to the Assembly.  Sattar argues that for s. 11 of the Act to apply there must be a specific agreement of a more formal nature made between the parties.  He further argues that he was coerced into participating in the process and was an unwilling participant who never agreed to having the Assembly resolve the claim or assist in resolving it.

[53]           The purpose of s. 11 is to encourage efforts to settle by providing that there is no limitation period penalty for plaintiffs who agree to enter into third party resolution processes.  Accordingly the section is to be interpreted broadly: (see Sandro Steel Fabrication Ltd. v. Chiesa, 2013 ONSC 658(CanLII), at para. 69).  There is no requirement that there be a specific express agreement incorporating s. 11 of the Act.  Nor is there a requirement for a specific express agreement to have a third party assist in resolving the claim.  There can be an agreement inferred from the parties’ conduct.  That is the case here.  Not only did Sattar respond to Parviz’s claim to the Assembly, he asked the Assembly to address his own claim in his letter of August 14, 2011.  When the decision of the Assembly was made, Sattar then appealed it.  I find that Sattar agreed to have the Baha’i Assembly assist him and Parviz in resolving the claim between them.

[54]           It would be completely unfair for Sattar to now argue that, having been unsuccessful before the Assembly and the Universal House of Justice, his involvement in the process was as an unwilling participant.  If he was in fact a coerced unwilling participant, he should have made this clear right from the beginning when  he received the letter of July 7, 2011 from the Assembly rather than going through the process, and, when unsuccessful, arguing that he did not agree to do so.  If he had in fact been an unwilling coerced participant, he should have made this clear so that Parviz could have considered his options.

[55]           However, I find that Sattar was not coerced.  He was not unwilling.  Rather he agreed to the process thus extending the limitation period during the period of August 14, 2011, when he agreed to have the Assembly assist them in resolving their claim, to July 19, 2012, when he withdrew from the process.  May 20, 2010 to August 14, 2011 is approximately 15 months and July 19, 2012 to January 24, 2013 is approximately six months.  Together the two time periods are less than two years.  The Parviz claim is not statute-barred.

 

 

 

Ontario: the limitation of oppression claims

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.

Ontario: the limitation of claims on foreign judgments

 

In Independence Plaza 1 Associates, L.L.C. v. Figlioni, the Court of Appeal held that the basic two-year limitation period applies to a claim on a foreign judgment in Ontario, and begins to run, at the earliest, when the time to appeal the judgment has expired or, if there is an appeal, the date of the appeal decision.  Section 5 of the Limitations Act can operate to delay discovery of the claim.

This is a terrific decision from Justice Strathy that settles one of the last unresolved limitations issues.  I wrote about the issue in a now out-of-date section of the Law of Limitations.  Conflicting jurisprudence held that the basic limitation period applied (correctly, I suggested), and that as a proceeding to enforce an order no limitation period applied at all (utterly wrongly, I suggested, in more measured language).      

Justice Strathy’s analysis turns on a close reading of the Limitations Act.  His decision begins with the following: “The correct approach to resolving the two questions raised by this appeal begins and ends with the provisions of the Limitations Act, 2002, which is a comprehensive and exhaustive scheme for dealing with limitation periods”.  I would offer, gently, that the correct approach to a limitations question always begins and ends with the Limitations Act’s provisions, which courts rather often forget, but this mustn’t detract from the really excellent analyses.

The analyses begins where limitations analyses should—with section 2, which describes the application of the Limitations Act:

[31]   Because the proceeding on the New Jersey judgment brought by the respondent in this appeal is a “claim pursued in a court proceeding,” it falls within the comprehensive and exhaustive scheme of the statute.

Having found that the Limitations Act applies, Justice Strathy turned to the application of s. 16(1)(b).

[33]   I turn now to the first question raised in this appeal – whether there is any limitation period applicable to a proceeding on a foreign judgment. Section 16(1) of the Limitations Act, 2002, which had no counterpart in the former statute, created a class of claims that are subject to no limitation period, rather than the “basic” two-year limitation period or the “ultimate” fifteen-year limitation period.

[42]   It falls to this court, as a matter of first impression, to interpret whether s. 16(1)(b) applies to a proceeding on a foreign judgment. The words of s. 16(1)(b) are to be read in light of the language of the provision as a whole, their context within the statutory scheme, and the purposes of the Limitations Act, 2002: see R. v. Hajivasilis, 2013 ONCA 27 (CanLII), 114 O.R. (3d) 337, at para. 23; and Ayr Farmers Mutual Insurance Co. v. Wright, 2016 ONCA 789 (CanLII), at paras. 26, 28-29, 31-32.

[43]   First, therefore, I consider the language of s. 16(1)(b) as a whole.

[44]   Phrases serving parallel functions and associated by the disjunction “or” in a statutory provision influence each other’s meaning. The parallelism “invites the reader to look for a common feature among the terms” to resolve any ambiguities: Ruth Sullivan, The Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 230. The Supreme Court has stated that “a term or an expression should not be interpreted without taking the surrounding terms into account” in order to identify a “common thread”: Opitz v. Wrzesnewskyj, 2012 SCC 55 (CanLII), [2012] 3 S.C.R. 76, at paras. 40, 43.

[45]   In my view, the term “order of a court” in s. 16(1)(b) takes its meaning, in part, from the parallel phrase immediately associated with it – namely, “any other order that may be enforced in the same way as an order of a court” (emphasis added). I observe that a similar parallel phrase is found in s. 19(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that “[a] certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such” (emphasis added).

[46]   The “common feature” or “common thread” linking these parallelisms is the concept of enforceability. Section 16(1)(b) of theLimitations Act, 2002 applies to court orders and to other orders, such as those of persons exercising a statutory power of decision, that are enforceable in the same way as a court order.

[47]   This common thread within s. 16(1)(b) does not extend to foreign judgments. The domestic judgments contemplated by the provision are directly enforceable in Ontario by means of the execution procedures in r. 60 of the Rules of Civil Procedure, including writs of seizure and sale, garnishment, or the appointment of a receiver: Lax, at para. 21. By contrast, like an order of a foreign arbitral tribunal, the debt obligation created by a foreign judgment cannot be directly enforced in Ontario in the absence of reciprocal enforcement legislation such as REJA or REJUKA. A proceeding in Ontario must be brought first: see Lax at paras. 11-13; Yugraneft at para. 45; Chevron Corp. v. Yaiguaje, 2015 SCC 42 (CanLII), [2015] 3 S.C.R. 69, at para. 43. That proceeding may result in a judgment or order of the Ontario court. The resulting order may be enforced as an order of the court, with no applicable limitation period.

[48]   Thus, the judgment of a foreign court is one step removed from being an order of a court for the purpose of s. 16(1)(b) of theLimitations Act, 2002. It is not on the same level as an order of an Ontario court or any other order, such as an order of an Ontario statutory decision maker, which may be enforced as an order of a domestic court. This was adverted to by Feldman J.A. in Lax, at para. 31, in explaining why she did not agree with the approach taken by Cumming J. in Girsberger:

[A]s long as only domestic judgments can be enforced by execution and the other methods discussed above, and therefore foreign judgments must be transformed into domestic judgments or registered before they are enforceable as domestic judgments, there is not parity of treatment.

[49]   There are good reasons for giving different treatment for limitations purposes to the enforcement in Ontario of a judgment of an Ontario court, on the one hand, and a judgment of a foreign court, on the other hand. The principle of territorial sovereignty means that the judgment of a court has effect only inside the territory in which the court is located and cannot be enforced outside its borders: Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws, 2d ed. (Toronto: Irwin Law, 2016), at p. 162. The extraterritorial enforcement of a court’s order is not a legitimate exercise of state power: see Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at p. 1052; Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572, at para. 31;Chevron, at paras. 47-48; and Endean v. British Columbia, 2016 SCC 42 (CanLII), 401 D.L.R. (4th) 577, at para. 45.

[50]   Thus, while a domestic judgment can be enforced as of right in Ontario, it is necessary to bring a proceeding on a foreign judgment. If that proceeding is successful, it will give rise to an Ontario judgment which can be directly enforced in the province.

[51]    Furthermore, a judgment creditor who brings an Ontario proceeding on a foreign judgment must show that the foreign court had jurisdiction and that the judgment is final and for the payment of money (or that it would be appropriate for the Ontario court to recognize it as enforceable within the province even if it is interlocutory or non-monetary): see Pro Swing; Chevron; and Cavell Insurance Co. (Re) (2006), 2006 CanLII 16529 (ON CA), 80 O.R. (3d) 500 (C.A.), at para. 41.

[52]   The foreign judgment debtor is entitled to raise defences to the proceeding, such as fraud, denial of natural justice and public policy: see Beals. These defences “distinguish foreign judgments from local judgments, against which the sole recourse is an appeal”: Janet Walker & Jean-Gabriel Castel, Canadian Conflict of Laws, loose-leaf (Rel. 54-3/2016 Pub.5911), 6th ed. (Toronto: LexisNexis, 2005), at para. 14.3.

[53]   I conclude that the language of s. 16(1)(b) of the Limitations Act, 2002 suggests that the term “order of a court” refers to an order of a domestic court.

[54]   Second, I consider the statutory context of s. 16(1)(b) of the Limitations Act, 2002.

[55]   Section 16(1)(b) also takes its meaning from the surrounding provisions of s. 16. When statutory provisions are grouped together, the legislature is presumed to have drafted each with the others in mind: Inland Revenue Commissioners v. Hinchy,[1960] A.C. 748 (H.L.), at p. 766. They tend to illuminate each other’s meaning because they “share a single idea”: Ruth Sullivan,Statutory Interpretation, 3d ed. (Toronto, Irwin Law, 2016), at p. 175.

[56]   The other provisions grouped together in s. 16 pertain to claims such as family law support awards, sexual assault claims and government claims that are considered so important that, for one policy reason or another, they should have no limitation period at all. For example, the policy reason underlying the exemption for sexual assault claims “is grounded in the likelihood that the dynamic of the relationship will impede the autonomy of the victim”: Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53(CanLII), at para. 40, aff’d, 2012 ONCA 230 (CanLII).

[57]   In this context, it is important to identify the policy reason for including claims “to enforce an order of a court” in the subset of claims that have no limitation period under s. 16. In my view, the reason is that such claims have already passed a limitations hurdle under Ontario law – a court order can only be obtained if the underlying cause of action giving rise to it was not time-barred.

[58]   This was the policy reason suggested by the British Columbia Law Reform Commission, in its 1974 Report on Limitations, for the argument that no limitation period should apply to claims to enforce domestic court orders. As quoted by Newbury J.A. inYoung v. Verigin, at para. 7, the commission wrote:

Furthermore, the successful plaintiff cannot be said to have slept on his rights. He has taken action, and as a consequence recovered judgment. It might be argued, with considerable justification, that no limitation period whatsoever should exist with respect to the enforcement of judgments. It may seem unfair that the plaintiff who has been put to the trouble and expense of obtaining a judgment to enforce a right or obligation should face a further limitation period with respect to the exercise of his rights under the judgment. Why should he not be free to pursue his rights under the judgment at his leisure if he so chooses?

[59]   It follows that the term “order of a court” in s. 16(1)(b) should be interpreted as referring to an order of a domestic court only. A proceeding on a foreign judgment has not passed any Ontario limitations hurdle. If the action on the foreign judgment is successful, it results in an Ontario judgment, which is subject to no limitation period. But that can only be justified if the underlying cause of action based on the foreign judgment has already passed a limitations hurdle in Ontario.

[60]     I find support for this conclusion in the Report of the Ontario Law Reform Commission on the Limitation of Actions (Toronto: Department of the Attorney General, 1969), at pp.50-51. The report stated, at p. 49, that there was good reason to apply the longer twenty-year limitation period in the former Limitations Act to actions on domestic judgments because, in terms later adopted by the British Columbia report, “the successful plaintiff cannot be said to have slept on his rights. He has taken action and, as a consequence, recovered judgment.” However, the report nevertheless recommended that foreign judgments should remain subject to the six-year limitation period governing debts in the former Limitations Act, notwithstanding the artificiality of treating them as simple contract debts.

[61]   It is also noteworthy that several provinces have subjected foreign judgment proceedings to a special limitation period that is distinct from the one that applies to proceedings on domestic judgments. British Columbia’s Limitation Act subjects “local” judgment proceedings to a ten year limitation period in s. 7, but it deals with “extraprovincial judgments” separately. Section 2(1)(l) of Manitoba’s The Limitation of Actions Act, C.C.S.M., c L150, treats “Canadian judgments” differently from other judgments. Newfoundland sets a six-year limitation period on an action “to enforce a foreign judgment” and a ten-year period on actions to enforce a judgment of a court in the province: see Limitations Act, S.N.L. 1995, c. L-16.1, s. 6(1)(g). And Prince Edward Island’sStatute of Limitations, R.S.P.E.I. 1988, c. S-7, s. 2(1)(f) distinguishes between “extraprovincial judgments” and other judgments.

[62]   The statutory context therefore suggests that the language of s. 16(1)(b) of the Limitations Act, 2002 is confined to orders of domestic courts.

[63]   Third, and finally, I consider s. 16(1)(b) in light of the purposes of limitations statutes.

[64]   It would be contrary to the purposes of limitations statutes to interpret s. 16(1)(b) as exempting foreign judgments from any limitation period. If it were always possible to bring a proceeding on a foreign judgment in Ontario without time limitation, no matter when and where it was obtained, the debtor would be indefinitely exposed to the prospect of defending such proceedings in Ontario. As was pointed out in the Ontario Law Reform Commission’s report at p. 50, problems associated with the preservation and reliability of evidence are especially pronounced for foreign judgment debtors. This militates in favour of having some limitation period apply to proceedings on foreign judgments. As well, exempting such proceedings from a limitation period would not encourage diligence or reasonable dispatch on the part of the foreign judgment creditor, who, unlike domestic judgment creditors, has not already surmounted an Ontario limitations hurdle.

[66]   I conclude, therefore, that s. 16(1)(b) of the Limitations Act, 2002 does not apply to proceedings on foreign judgments, and the applicable limitation period for the respondent’s proceeding on the New Jersey judgment at issue in this appeal is the basic two-year period in s. 4. The result is that time begins to run when the claim is “discovered” within the meaning of s. 5. I turn to that question next.

Justice Strathy then considered when time begins to run on a claim on a foreign judgment in Ontario:

[70]   The test under the Limitations Act, 2002 is not whether the judgment is “final”; it is when the claim is discovered, a fact that is ascertained through the application of s. 5(1), aided by the presumption in s. 5(2).

[71]   I acknowledge the point made by Newbould J. in PT ATPK that, in the context of s. 5(1) of the Limitations Act, 2002, a proceeding on a foreign judgment does not fall particularly neatly into the definition of “claim” as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” However, the statute was meant to be comprehensive and exhaustive.Section 2(1) provides that it applies to “claims pursued in court proceedings,” and s. 4 provides that the basic two-year limitation period applies “unless this Act provides otherwise.”

[72]   The words “injury, loss or damage” in s. 5(1) can reasonably refer to the debt obligation created by a foreign judgment and owed by the foreign judgment debtor to the creditor. The “act or omission” can reasonably refer to the debtor’s failure to discharge the obligation once it became final. Viewed in this light, s. 5(1) can reasonably be viewed as applying to a proceeding on a foreign judgment.

[74]   Section 5(1) provides that a claim is discovered on the earlier of: (a) the day on which the claimant first knew, among other things, “that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”; and (b) the day on which “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)”. The test in s. 5(1)(a) has been referred to as a “subjective test” because it looks to the claimant’s actual knowledge, and the test in s.5(1)(b) as a “modified objective” test because it looks to what a reasonable person with the abilities and in the circumstances of the claimant ought to have known: see Ferrera v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONCA 851 (CanLII), 113 O.R. (3d) 401, at para. 70; and Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16 (CanLII), at para. 35.

[75]   In 407 ETR Concession Co. v. Day, 2016 ONCA 709 (CanLII), at para. 48, Laskin J.A. explained that “one reason why the legislature added ‘appropriate means’ [in s. 5(1)(a)] as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation.” “Appropriate” means “legally appropriate.” For example, a tactical choice to delay commencement of a proceeding to engage in settlement discussions after a loss, injury or damage is known does not make the proceeding inappropriate: Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218 (CanLII), 109 O.R. (3d) 652, at para. 24.

[76]   Appropriateness must be assessed on the facts of each case, and case law applying s. 5(1)(a)(iv) is of limited assistance:Brown v. Baum, 2016 ONCA 325 (CanLII), 348 O.A.C. 251, at para. 41. However, it is noteworthy that courts have held that a proceeding is not legally appropriate until other mechanisms for resolving a dispute, such as a statutory remedial process, have been exhausted: see 407 ETR, at para. 40; U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103(CanLII), at paras. 22-25; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 (CanLII), at paras. 52-57, aff’d, 2015 ONCA 847 (CanLII); and Mew, at pp. 95-96.

[77]   In the usual case, it will not be legally appropriate to commence a legal proceeding on a foreign judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted. The foreign appeal process has the potential to resolve the dispute between the parties. If the judgment is overturned, the debt obligation underlying the judgment creditor’s proceeding on the foreign judgment disappears.

[79]   To regard a claim based on the foreign judgment as discoverable and appropriate only when all appeals have been exhausted is also consistent with the observations of Rothstein J. in Yugraneft. He stated, at para. 57, that the limitation period to enforce a foreign arbitral judgment under Alberta’s Limitations Act starts to run when the time to appeal the judgment has expired or, where an appeal is taken, the date of the appeal decision.

[79]   To regard a claim based on the foreign judgment as discoverable and appropriate only when all appeals have been exhausted is also consistent with the observations of Rothstein J. in Yugraneft. He stated, at para. 57, that the limitation period to enforce a foreign arbitral judgment under Alberta’s Limitations Act starts to run when the time to appeal the judgment has expired or, where an appeal is taken, the date of the appeal decision.

[80]   Finally, as the application judge noted, this approach avoids the risk of multiplicity of proceedings by not requiring the judgment creditor to commence a proceeding on a foreign judgment in Ontario before all proceedings in the foreign jurisdiction have run their course. It furthers the purpose of s. 5(1)(a)(iv) of the Limitations Act, 2002 by deterring the unnecessary litigation that may result from commencing an Ontario proceeding on a foreign judgment that is subsequently overturned.

[82]   In a particular case, a claim based on a foreign judgment may not be discovered under s. 5 of the Limitations Act, 2002 until such time as the judgment creditor knew or ought to have known that the judgment debtor had exigible assets in Ontario and could be served with process: see Yugraneft at paras. 49. 58, 61. As s. 5(1)(b) makes clear, the discoverability assessment, including the appropriateness criterion, must take account of the factual context and the plaintiff’s actual circumstances, and I reiterate that each case must be decided on its own facts: see 407 ETR, at paras. 34, 45-46.

These are the other noteworthy aspects of the decision:

  • Justice Strathy uses the language of proceeding—”When does time begin to run a proceeding”.  This is the correct way to engage with the commencement of time, because the Limitations Act bars proceedings, not claims or causes of action.  One sees this accuracy, and the accordant conceptual clarity, quite infrequently.
  • Justice Strathy provides a succinct overview of the purposes of statutes of limitations, which is now the leading Ontario authority for the principles (and, forgive me for adding, cites the Law of Limitations):

[19]   Limitations statutes reflect public policy about efficiency and fairness in the justice system. There are three broad policy justifications for limitation statutes: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (CanLII), [2013] 1 S.C.R. 623, at paras. 231-234.

[20]   First, they promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts: Hare v. Hare (2006), 2006 CanLII 41650 (ON CA), 83 O.R. (3d) 766 (C.A.), at para. 41. They reflect a policy that, after a reasonable time, people should be entitled to put their business and personal pasts behind them and should not be troubled by the possibility of “stale” claims emerging from the woodwork.

[21]   Second, they ensure the reliability of evidence. It is inefficient and unfair to try old claims because evidence becomes unreliable with the passage of time. Memories fade, witnesses die and evidence gets lost. After a reasonable time, people should not have to worry about the preservation of evidence: K.M. v. H.M., 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at p. 30.

[22]   Third, and related to this, limitation periods promote diligence because they encourage litigants to pursue claims with reasonable dispatch.

[23]   Other justifications have been given, including the interest in the efficient use of public resources through the expeditious resolution of disputes and the desirability of adjudicating disputes on the basis of contemporary values and standards: see Graeme Mew, The Law of Limitations, 3d ed. (Toronto, LexisNexis, 2016), at pp. 16-18.

  • Justice Strathy also provides a very succinct overview of the legislation history of the Limitations Act:

[28]    The Limitations Act, 2002 was the culmination of several attempts, beginning in the late 1960s, to reform, consolidate and simplify the law of limitations in Ontario. The history of those attempts was set out by Weiler J.A. in York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., 2007 ONCA 49 (CanLII), 84 O.R. (3d) 414, at paras. 27-30. See also McConnell v. Huxtable, 2013 ONSC 948 (CanLII), 113 O.R. (3d) 727, at paras. 62-73, aff’d, 2014 ONCA 86 (CanLII).

[29]   The purpose of the new statute was to replace a complex, obscure and confusing regime of multiple limitation periods with a simple and comprehensive scheme. The new scheme consists of a basic two-year limitation period applicable to most claims, an “ultimate limitation period” of fifteen years and a statutorily-enshrined discoverability principle. It was intended to promote certainty and clarity in the law of limitation periods: see Dilollo Estate (Trustee of) v. I.F. Propco Holdings (Ontario) 2013 ONCA 550 (CanLII), 36 Ltd., 2013 ONCA 81, 117 O.R. (3d) 81, at para. 61.