The Superior Court decision in Grant Thornton Limited, as Court-appointed Receiver v. 1902408 Ontario Ltd. holds that a claim to enforce a charge and security interest in fixtures is subject to the Limitations Act and not the Real Property Limitations Act.
The creditor argued that a claim to enforce its charge and security interests in fixtures involved a direct interest in real property and was therefore subject to the limitation period on s. 23(1) of the RPLA. The creditor reasoned that at common law, fixtures are part of real property. The court rejected this argument. The creditor’s security agreement with the debtor was governed by the PPSA, which applies to fixtures. Properly characterised, the claim was to enforce and realise on a security interest in personal property under the PPSA:
[32] I conclude that Sluyter’s claim to enforce its charge and security interest in the Fixtures is not to recover money secured by a mortgage or lien on land, or otherwise charged upon or payable out of land. Sluyter’s claim is not subject to the ten year limitation period provided for by the RPLA. Sluyter’s claim is to enforce and realize on a security interest in personal property under the PPSA. This claim is subject to the two year limitation period in the Limitations Act, 2002. Sluyter had not commenced proceedings to enforce its rights under the GSA by August 29, 2018, the second anniversary of the date when payment of the secured indebtedness was due. Sluyter’s claim is statute barred.
