Curiously, posts about the Real Property Limitations Act receive the most views on Under the Limit. My guess is that this reflects the murkiness of the Act more than people’s interest in it. The Act is Part I of the former Limitations Act, renamed, but otherwise unchanged from its antiquated and impermeable glory. When the Ontario limitations regime was being reformed, a complete review of limitations was too time-consuming, and so review of the real property limitation periods was abandoned to avoid delaying the other reforms. Should you be interested, the legislative history is detailed here at paragraphs 27-33.
In the spirit of catering to my market, I present the decision in 552439 Ontario Limited v. Forbes Building Material Limited for its summary of the section 23(1) limitation period for mortgage enforcement:
− Paragraph 23(1) of the Real Property Limitations Act provides for a ten-year limitation period for the enforcement of a mortgage. It reads as follows:
23(1) “4. No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given.”
− It is the nature of the mortgage which will determine when the ten-year period is triggered. The limitation cannot pass before the mortgagee has any right to enforce. The limitation runs from the earliest time at which repayment can be required.
− While there are exceptions, on a demand mortgage, the cause of action accrues upon execution of the mortgage.
– Mortgage Insurance Co. of Canada v. Grant 2009 ONCA 655 (CanLII), [2009] O.J. No. 3769
– Alter v. Csontos [2004] O.J. No. 1590
– Cioccio v. Cioccio [2005] O.J. No. 1182
− If the terms of the mortgage provide for payment upon the happening of a specific contingency, then the cause of action arises upon the happening of the contingency. Thus, the ten-year statutory limitation does not run until the contingency is satisfied.
– Re Gould Ex Parte Garvey 1940 CanLII 89 (ON CA), [1940] O.R. 250 (Ont. C.A.)
– Canada Mortgage and Housing Corp. v. 447136 British Columbia Ltd. [2014] B.C.J. No. 497
