In Maurice v. Alles, the Court of Appeal confirmed that a claimant must commence an oppression remedy claim within two years of the discovery of the claim. Conduct that is in furtherance of, or based on, earlier oppressive conduct is new oppressive conduct that gives rise to a new cause of action, and therefore a new “claim” within the meaning of the Limitations Act, and is subject to its own limitation period.
These are the material paragraphs:
[52] A party that engages in a series of oppressive acts can always make the argument that it is all part of the same corporate malfeasance and that the limitation period begins to run with the discovery of the first oppressive act. In analyzing that conduct, courts must have regard to the remedial nature of the oppression remedy and the fact that any threatened or actual conduct that is oppressive, or unfairly prejudicial to, or unfairly disregards the interests of any complainant can constitute a discrete claim of oppression. The oppression remedy section of the OBCA is drafted in the broadest possible terms to respond to the broadest range of corporate malfeasance.
[53] Where the motion judge erred was in failing to carefully scrutinize the respondents’ conduct to determine whether there were any discrete acts of oppression within the two-year period prior to the commencement of the cross-application.
This is all very sensible. Discrete causes of action give rise to discrete “claims” within the meaning of the Limitations Act, and accordingly are subject to discrete limitation periods.
The problem with this decision is that it rejects a comprehensive limitations analysis (eg, whether there is a new “claim” within the meaning of the Limitations Act) in favour of a cause of action analysis. Justice Hourigan states, in paragraph 48, “As previously mentioned, limitation periods begin when the cause of action arises, not when it is remedied”.
This is plainly wrong. Limitation periods commence on discovery of a claim, and discovery is completely unconnected to the accrual of a cause of action. The words “cause of action” do not appear in the Limitations Act, and it often happens that the basic limitation period commences before the claimant’s cause of action accrues. The basic limitation period commences presumptively on the date of the events giving rise to the claim. A cause of action, at least in tort, requires actionable conduct and damage; whenever the actionable conduct (the events giving rise to the claim) and the resulting damage occur on different dates, the limitation period commences presumptively before the claimant’s cause of action accrues.
It’s troubling that this aspect of the limitations scheme is consistently misunderstood by the Courts. The effect is to undermine the scheme’s conceptual integrity, and bad law.
The other interesting aspect of the decision is the following paragraph:
[46] The appellant had an obligation to commence a claim based on the respondents’ failure to produce the information regarding the share transaction within two years of his discovery that they would not produce it to him. It is not open to this court, as was suggested by the appellant, to look behind his non-action and excuse it based on the fact that this was a family business or that he had a reasonable expectation that the information would eventually be produced. Such an approach would effectively mark the return of the special circumstances doctrine, which has no application under the current limitations regime.
It seems to me that the fact that a dispute arises within the context of a family business or that the claimant has a reasonable expectation that certain information will be produced is relevant to a section 5(1)(a)(iv) analysis under the Limitations Act. Consider Justice Juriansz’s description of the section 5(1)(a)(iv) requirement in Clarke v. Faust: “That provision requires, in my view, a person to have good reason to believe he or she has a legal claim for damages before knowing that commencing a proceeding would be an appropriate means to seek to remedy the injury, loss or damage.” Surly there is a persuasive argument that it may take longer for a person to have a good reason to believe she has a legal claim against a family member than against someone else.
