In Victory v. Sattar, the court held that a formal agreement is unnecessary to engage s. 11 of the Limitations Act. Agreement is inferable from the parties’ conduct.
Section 11 provides that if a claimant and the party against whom the claim is made agree to the assistance of an independent third party in resolving the claim, the limitation period doesn’t run until the date the claim is resolved, the resolution process ends, or one party withdraws or terminates the agreement.
The conduct of the parties in Victory demonstrated their agreement to obtain the assistance of an independent third party, the Baha’i National Spiritual Assembly and the Universal House of Justice. This engaged s. 11:
[51] Section 11 provides that if a claimant and the one against who the claim is made have agreed to have an independent third party assist them in resolving the claim, then the limitation period does not begin to run until the date when the claim is resolved, the attempted resolution process is terminated, or one party withdraws or terminates the agreement. Here, there is no resolution. While the letter itself is not in evidence, it is clear that on July 19, 2012 Sattar indicated he was no longer prepared to take part in the process. Accordingly, the limitation period begins to run again from that date. It is just over six months from July 19, 2012 to January 24, 2013 when the claim was issued.
[52] Parviz argues that the limitation period initially started on July 7, 2010 when Sattar made his last payment to him pursuant to the Toronto agreement. Sattar does not strenuously disagree. Even if the limitation period was to initially start on May 20, 2010 it would not change the result. Parviz argues that the limitation period stopped running on August 14, 2011 when Sattar sent his defence and claim letter to the Assembly. Sattar argues that for s. 11 of the Act to apply there must be a specific agreement of a more formal nature made between the parties. He further argues that he was coerced into participating in the process and was an unwilling participant who never agreed to having the Assembly resolve the claim or assist in resolving it.
[53] The purpose of s. 11 is to encourage efforts to settle by providing that there is no limitation period penalty for plaintiffs who agree to enter into third party resolution processes. Accordingly the section is to be interpreted broadly: (see Sandro Steel Fabrication Ltd. v. Chiesa, 2013 ONSC 658(CanLII), at para. 69). There is no requirement that there be a specific express agreement incorporating s. 11 of the Act. Nor is there a requirement for a specific express agreement to have a third party assist in resolving the claim. There can be an agreement inferred from the parties’ conduct. That is the case here. Not only did Sattar respond to Parviz’s claim to the Assembly, he asked the Assembly to address his own claim in his letter of August 14, 2011. When the decision of the Assembly was made, Sattar then appealed it. I find that Sattar agreed to have the Baha’i Assembly assist him and Parviz in resolving the claim between them.
[54] It would be completely unfair for Sattar to now argue that, having been unsuccessful before the Assembly and the Universal House of Justice, his involvement in the process was as an unwilling participant. If he was in fact a coerced unwilling participant, he should have made this clear right from the beginning when he received the letter of July 7, 2011 from the Assembly rather than going through the process, and, when unsuccessful, arguing that he did not agree to do so. If he had in fact been an unwilling coerced participant, he should have made this clear so that Parviz could have considered his options.
[55] However, I find that Sattar was not coerced. He was not unwilling. Rather he agreed to the process thus extending the limitation period during the period of August 14, 2011, when he agreed to have the Assembly assist them in resolving their claim, to July 19, 2012, when he withdrew from the process. May 20, 2010 to August 14, 2011 is approximately 15 months and July 19, 2012 to January 24, 2013 is approximately six months. Together the two time periods are less than two years. The Parviz claim is not statute-barred.
