Whatever impact the Ford brothers may have, who would have though that it would include limitations law? And yet here they are in MacDonald v. Ford, arguing that section 5 of the Limitations Act should inform the commencement of the time period set out in section 9(1) of the Municipal Conflict of Interest Act. Justice Perell correctly concludes that it doesn’t, but through an analysis that gives rise to a new category of “non-conventional” limitation periods. The one thing limitations law needed, of course, is a further complication.
Section 9(1) of the Municipal Conflict of Interest Act entitles an elector to apply to a judge for a determination of whether a member has contravened section 5 of the Act. It imposes a time limit of six weeks “after it comes to his or her knowledge that a member may have contravened” the Act’s provisions.
The applicant brought an application under section 9(1) alleging that the Ford brothers contravened the Municipal Conflict of Interest Act by voting on seven matters before Toronto City Council and its committees despite conflicts of interest.
The Fords argued that section 9(1) “should be interpreted in a way that infuses it with the discoverability principles found in section 4 and 5 of the Limitations Act, 2002“. In essence, they argued that the applicant objectively had knowledge of the alleged contraventions more than six weeks before commencing the application. Given her “keen interest in municipal government”, with due diligence the applicant should have had the requisite knowledge within six weeks of the contraventions.
The applicant’s counterargument was that her application was timely because, on her uncontested testimony, she brought the Application within six weeks of subjectively obtaining knowledge of the contraventions.
Justice Perell held reasonably and, I think, correctly that because section 9(1) considers only the subjective knowledge of the applicant, there is no basis for applying the objective discovery principles in the Limitations Act. In any event, it would take some creativity to apply the section 5 discovery criteria to an application under section 9(1) of Municipal Conflict of Interest Act. The claim (as defined by the Limitations Act) they contemplate is materially different than a section 9(1) application.
The issue is with how Justice Perell arrived at his conclusion. He finds that section 9(1) is a “temporal condition precedent or qualifying criterion to an application”. It “can be labelled a limitation provision but it is not a conventional one and its more accurately characterized as a qualification or condition precedent”:
[150] In my opinion, the section of the Act that is a genuine conventional limitation period is the absolute limitation period described in s. 9(3) of the Act [which provides that no application shall be brought after the expiration of the term of office of the member of council during which the contravention is alleged to have occurred]. In my opinion, s. 9(1) is a temporal qualification to the bringing of an application under the Act. It is for certain not a conventional limitation period of the like found in sections 4 and 5 of the Limitation Act, 2002. The language, purpose, and design of s. 9(1) of the Act are different from the language, purpose, and design of sections 4 and 5 of the Limitation Act, 2002.
[…]
[153] As far back as pre-Confederation statutes, the Legislature intended that relators and electors not rest inactive when they come to have personal knowledge of contraventions of election law or of misconduct by municipal politicians. The policy imperatives here have little to do with the evidentiary and repose policies of limitation period statutes. Further, the review of the case law shows that s. 9(1) does not operate as a conventional limitation period to provide technical defences to a defendant and s. 9(1) does not foreclose late arriving electors, even recruited electors, from advancing an allegation that theAct has been contravened.
[154] The case law shows that an application under the Municipal Conflict of Interest Act will be statute-barred based on subjective factors associated with the knowledge of a particular applicant. The case law shows that only if the applicant had subjective actual or constructive knowledge of the facts on which the alleged contravention of the Act is grounded more than six weeks before the application is issued will the claim be statute-barred.
The problem is, by the plain meaning of the Limitations Act, section 9(1) is a limitation period. Section 19(1) of the Limitations Act provides that ” A limitation period set out in or under another Act that applies to a claim to which this Act applies is of no effect unless, (a) the provision establishing it is listed in the Schedule to this Act. Section 9(1) and 9(3) of the Municipal Conflict of Interest Act are both listed in the schedule. This would seem a very strong indication that the Legislature intended 9(1) to be a limitation period.
It was available for the Court to define section 9(1) as a limitation period without exposing it to the application of the Limitations Act‘s section 5 discovery provisions . It’s long settled that these provisions don’t necessarily apply to schedule 19 limitation periods. The limitation periods in the Trustee Act are examples; discoverability doesn’t operate to extend them (although for unrelated reasons).
By defining section 9(1) as a not conventional limitation period–a temporal condition precedent or qualifying criterion–Justice Perell effectively created a new category of quasi-limitation periods. To my knowledge, no other Ontario jurisprudence has applied this concept or used this terminology. It’s difficult to see the advantage of introducing this new category; at best it further muddies the already fraught conceptual framework of the limitations regime.
As for the Ford brothers, their argument failed. The application was timely:
[155] Applying the above law to the circumstances of the immediate case, the uncontradicted evidence of Ms. MacDonald shows that her Application was timely. The Fords’ arguments of untimeliness would impose some sort of Sherlockian investigative duty on Ms. MacDonald to connect all the requisite facts because some of the facts were online in City records readily available to the inquiring mind of one Ms. MacDonald. As a matter of evidence, however, Ms. MacDonald has uncontested evidence about her state of knowledge at the time when she commenced her Application and based on her evidence each of her complaints is timely.
[156] The Fords did not bring forward evidence, as did the respondents in Stephenson v. Hunt, Kay v. Ferguson, Alcock v. McDougald, and Hervey v. Morris, to show that the Applicant subjectively had earlier knowledge of the alleged contravention.
