After a prolonged summer break, Under the Limit returns!
In Waterstone Properties v. Caledon (Town), the Court of Appeal reminds us that s. 4 of the Real Property Limitations Act applies to any court proceeding to obtain land by court judgment:
[32] The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost. Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust: Hartman Estate v. Hartfam Holdings Ltd., 2006 CanLII 266 (ON CA), [2006] O.J. No. 69, at para. 56; McConnell v. Huxtable, 2014 ONCA 86 (CanLII), 118 O.R. (3d) 561, at paras. 38-39.
As to what it means to obtain land by court judgment, some direction comes from Justice Faieta’s decision in Wilfert v. McCallum from June 2017. The prospect that a financial benefit may accrue to a plaintiff/judgment creditor resulting from a declaration to set aside a transfer of land under the Fraudulent Conveyances Act does not result in the the plaintiff obtaining land by court judgment.
[26] With the greatest of respect for the views expressed by my colleague in Conde v. Ripley, 2015 ONSC 3342 (CanLII) at para. 48, the prospect that a financial benefit may accrue to a plaintiff/judgment creditor resulting from a declaration to set aside the transfer of land under the FCA does not result in the plaintiff “obtaining land by judgment of the Court”. Accordingly, an action to set aside a fraudulent conveyance of land is not an action to recover land.
