In Craven v. Osidacz, the plaintiff asked the court to fix costs for a motion heard in 2010. The defendant objected based on an expired limitation period. The Superior Court held that no limitation period applies to a request to fix costs pursuant to s. 16(1)(b) of the Limitations Act because the plaintiff was seeking to enforce a court order, and because the request was not a “claim” as defined by s. 1.
The court held that “it is not clear that the plaintiff’s request for costs constitutes a ‘claim’”. This is correct; indeed, it’s beyond argument, and a little more certainty in the court’s statement would have been warranted. As Kaynes and Grant Thorton hold, the “claim” derives from a cause of action, and is sometimes functionally the same. A litigant doesn’t assert a cause of action when asking the court to fix costs, it asks the court to enforce an order. Costs themselves aren’t a cause of action, but the exercise of judicial discretion pursuant s. 131 of the Court of Justice Act.
The court’s consideration of the meaning “claim” at paras. 36-38 is extensive and well-reasoned, but it would have been sufficient to refer to the principles set out in Kaynes regarding the meaning and function of “claim”.
The court’s discussion of s. 16(1)(b) was unnecessary, but will be useful to anyone considering its application:
[30] The Limitations Act does not apply to the costs of the two motions because, as provided for in s. 16(1)(b) of the Act, there is “no limitation period in respect of a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of the court.”
[32] There is little case-law citing s. 16(1)(b), but one case supports this interpretation, Pet Valu Canada Inc. v. Rodger, 2018 ONSC 3353. In that case, Pet Valu Canada Inc. (“Pet Valu”) and 1250264 Ontario Inc. (“125”) were embroiled in a class action proceeding that resulted in Pet Valu being awarded over $1.7 million in costs against 125, the representative plaintiff. 125 did not pay any of the costs and Pet Valu brought an action against 125’s sole shareholder, Mr. Rodger, for payment of the cost orders. Mr. Rodger argued that Pet Valu’s claims were statute barred, but the court unequivocally dismissed this argument because (1) as per s. 16(1)(b) there is no limitation in respect of a proceeding to enforce an order of a court, and (2) the action against Mr. Rodger (as opposed to 125) fell within the requisite time-frame. Of course, Pet Valu Canada Inc. is more straightforward because the costs were determined and Pet Valu was simply seeking to have payment enforced, unlike the present case. That being said, both Lofchik J. and Harper J. ordered that the costs were to be reserved, and this order was ultimately not dealt with nor enforced.
