Ontario Court of Appeal

Ontario: undertaking alternative remedial processes can delay discovery

Presidential MSH Corporation v. Marr Foster & Co. LLP is another excellent decision from the Court of Appeal applying s. 5(1)(a)(iv) of the Limitations Act.  Where the plaintiff relies on an alternative process that would substantially eliminate its loss so that court proceedings would be unnecessary to remedy it, and the date the alternative process runs its course is reasonably ascertainable, a proceeding will not be an appropriate remedy until that alternative process concludes.

While this decision doesn’t break new ground, it clarifies the impact remedial measures can have on discovery of a claim.  This is of particular consequence in professional negligence claims, which was the case in Presidential.

The respondents filed the appellant’s corporate tax returns after their due date. As a result, the CRA denied tax credits that would have been available had the returns been filed on time.

The appellant received the CRA’s Notices of Assessment disallowing each of the claimed credits on April 12, 2010. When the appellant received the notices, he immediately asked the respodnents what to do and how to fix the problem.

The motion judge inferred that the respondents advised the appellant to retain a tax lawyer to determine how to solve the tax problem but didn’t advise him to obtain legal advice about a professional negligence claim against the respondents.

The appellant did retain a tax lawyer on April 15, 2010, but there was no discussion of a possible action against the respondents. The tax lawyer filed a Notice of Objection to the CRA assessments, as well as an application for discretionary relief. The respondent helped the appellant prepare its appeals to the CRA by drafting the application for relief and helping the appellant and its lawyer with whatever else they needed, until at least November 2011.

By letter dated May 16, 2011, the CRA responded to the Notice of Objection advising that it intended to confirm the assessments. It did in fact confirm them on July 7, 2011.

The motion judge found that, as late as July 2011, there was still a reasonable chance that the application for discretionary relief would mitigate some or all of the appellant’s loss.

On August 1, 2012, the appellant issued its statement of claim against the respondents. This was more than two years after the initial denial by CRA of the credits, but within two years of CRA’s refusal to alter the assessments in response to the Notice of Objection.

The motion judge held that the appellants claim would have been appropriate while the CRA appeal was still ongoing because the appeal would not have fully eliminated the appellant’s claim against the respondents.  In particular, it would not have eliminated the appellant’s claim for the costs of retaining a tax lawyer to prosecute it.

Justice Pardu rejected this reasoning.  She summarised the applicable principles:

[20]      First, the cases suggest that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

[…]

[26]      Resort to legal action may be “inappropriate” in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship. Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the plaintiff, is not engaged in good faith efforts to right the wrong it caused. The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature.

[27]      Finally, I note that cases in which a defendant who is an expert professional attempts to remedy a loss that a plaintiff has discovered and alleges was caused by the defendant (engaging the potential application of s. 5(1)(a)(iv)) are distinct from  cases in which courts have held that  a client has not discovered a potential claim for solicitor’s negligence until being advised by another legal professional about the claim: see Ferrara, at para. 70; and Lauesen v. Silverman, 2016 ONCA 327 (CanLII), 130 O.R. (3d) 665, at paras. 25-31. In the latter category of cases, the issue is whether the plaintiff knew or ought reasonably to have knowninjury, loss or damage had occurred (under s. 5(1)(a)(i)) that was caused by or contributed to by an act or omission of the defendant (under ss. 5(1)(a)(ii) and (iii)). Section 5(1)(a)(iv) comes into focus where the plaintiff knew or ought reasonably to have known of his or her loss and the defendant’s causal act or omission, but the plaintiff contends the limitation period was suspended because a proceeding would be premature. Although discoverability under more than one subsection of s. 5(1)(a) may be engaged in a single case, it is important not to collapse the analysis of discoverability of loss or damage and the defendant’s negligence or other wrong with the determination whether legal action is appropriate although other proceedings to deal with the loss may be relevant to both questions.

(3)         The effect of other processes which may eliminate the loss

[28]      A second line of cases interpreting and applying s. 5(1)(a)(iv) of the Act involves a plaintiff’s pursuit of other processes having the potential to resolve the dispute between the parties and eliminate the plaintiff’s loss.

[29]      This approach to discoverability is consistent with  the rule in administrative law that it is premature for a party to bring a court proceeding to seek a remedy if a statutory dispute resolution process offers an adequate alternative remedy and that process has not fully run its course or been exhausted: see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 (CanLII), 111 O.R. (3d) 561, at paras. 61-70.

[…]

[39]      Non-administrative, alternative processes have also been seen in other cases as having the potential to resolve a dispute, thus rendering a court proceeding inappropriate or unnecessary.

[…]

[45]      Many of the cases dealing with the effect of alternative processes on the appropriateness of a court proceeding have applied the concept of a proceeding being “legally appropriate” articulated by this court in Markel. Markel involved a dispute between sophisticated insurers claiming indemnity under statutory loss transfer rules. The limitations issue that arose concerned whether a legal proceeding was “inappropriate” while settlement discussions between the parties were ongoing and thus, whether a claim was not discovered until these negotiations broke down.

[46]      Recall that, in Markel, the court held that the term “appropriate” in s. 5(1)(a)(iv) means “legally appropriate”. This interpretation avoided entangling courts in the task of having to “assess [the] tone and tenor of communications in search of a clear denial” that would indicate the breakdown of negotiations between the parties. That would permit a plaintiff to delay the discoverability of a claim for “some tactical or other reason” and “inject an unacceptable element of uncertainty into the law of limitation of actions” (at para. 34).

[47]      Similarly, in 407 ETR Concession Company, at para. 47, Laskin J.A. stated that the use of the term “legally appropriate” inMarkel “signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless” (emphasis added).

[48]      These cases instruct that if a plaintiff relies on the exhaustion of some alternative process, such as an administrative or other process, as suspending the discovery of  its claim, the date on which that alternative process has run its course or is exhausted must be reasonably certain or ascertainable by a court.

Accordingly, the motion judge erred in holding that the appellant knew or ought to have known that its proceeding was appropriate as early as April 2010, when it received the CRA’s Notices of Assessment disallowing its tax credits. The proceeding was not appropriate, and the appellant’s underlying claim was not discovered, until May 2011, when the CRA responded to the appellant’s Notice of Objection and advised that it intended to confirm its initial assessments. The motion judge erred by equating knowledge that the respondents had caused a loss with a conclusion that a proceeding would be an appropriate means to seek a remedy for the loss.

Had the respondents together with the tax lawyer prosecuted the CRA appeal successfully, the appellant’s loss would have been substantially eliminated, and it would have been unnecessary to resort to court proceedings to remedy it. The fact that the appellant would have been unable to recover the fees it paid the tax lawyer, except through litigation, was inconsequential. It is the claim that is discoverable, not the full extent of damages the plaintiff may be able to recover. It would not have been appropriate under s. 5(1)(a)(iv) of the Act for the appellant to commence a proceeding until the respondents ameliorative efforts concluded.

The CRA appeal process had the potential to eliminate the appellant’s loss. As an alternative process to court proceedings, it could have resolved the dispute between the appellant and the respondents. These results would have made a proceeding unnecessary. It would not have been appropriate for the appellant to commence a proceeding until the CRA appeal process was exhausted in May 2011.

The court’s decision in Markel, as interpreted in 407 ETR Concession Company, about the meaning of the concept of a proceeding being “legally appropriate” under s. 5(1)(a)(iv) of the Act supported the appellant’s position. It was not a case where the appellant sought to toll the operation of the limitation period by relying on the continuation of an alternative process whose end date was uncertain or not reasonably ascertainable. It was clear that the end date of the CRA appeal was when the CRA responded to the appellant’s Notice of Objection advising that it intended to confirm the assessments. Thus the motion judge erred in invoking Markel to dismiss the appellant’s claim as time barred.

A last note: the Court of Appeal seems to still be ignoring its decision in Clarke where it held that  the section 5(1)(a)(iv) discovery criterion requires the claimant to have “good reason to believe he or she has a legal claim for damages”.  I don’t think any decision has followed this construction of the provision.

Ontario: no limitation period for possessory liens

In Edan Agency Inc. v. Palinkas, the Court of Appeal held that limitation periods do not “generally” run against possessory liens.  This is because such a lien is a defence, and defences are not subject to statutory limitation periods.

This is a settled point of law.  Accordingly, it’s curious that the court should have used the qualifying language of “generally”.  I’d like to know in what circumstance a possessory lien would be subject to a limitation period–I suspect there’s none.

Ontario: claims for the return of condo deposits subject to ten year limitation period

The Court of Appeal has held that a claim for the return of deposits advanced toward the purchase of a condo unit is subject to the ten year limitation period in s. 4 of the Real Property Limitations Act.

Justice Epstein’s analysis in Harvey v. Talon International Inc. is refreshingly methodical and lucid.  It begins with the governing principle of statutory interpretation:

[40]      This is a matter of statutory interpretation. Statutory interpretation is governed by the approach described in Elmer Driedger,Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Principles Applied

[41]         Section 4 of the RPLA provides as follows:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[42]         When those aspects of s. 4 of the RPLA that do not apply to this case are removed, it provides that:

No person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it

[43]         Thus, there are 3 requirements in s. 4: an “action”, to “recover” and what must be recovered is “land”.

[44]         An action is defined in s. 1 of the RPLA to include “any civil proceeding”.

[45]         “Recover” is defined in legal dictionaries as “gaining through a judgment or order”. This was the definition adopted for the use of “recover” in s. 4 in McConnell v. Huxtable, 2014 ONCA 86 (CanLII), 118 O.R. (3d) 561, at paras. 16-20, specifically, at para. 17, where this Court noted that the English Court of Appeal has held that the expression “to recover any land” in comparable legislation “is not limited to obtaining possession of the land, nor does it mean to regain something that the plaintiff had and lost. Rather, “recover” means to ‘obtain any land by judgment of the Court’”

[46]         I agree with the application judge’s approach on this point. This is clearly an action to recover.

[47]         The remaining question is whether what Ms. Yim seeks to recover – her deposit – is “land”. The definition of land in s. 1 of the RPLA is as follows:

“land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency;

[48]         In my view, the application judge was also correct in concluding that an application for the return of the deposit was an action for the recovery of “land”; specifically the recovery of “money to be laid out in the purchase of land”.

[…]

[51]         In support of this conclusion, I note that several cases have clarified the relationship between claims for damages and claims covered by the RPLA. The Supreme Court in Canson Enterprises Ltd. v. Boughton & Co., 1991 CanLII 52 (SCC), [1991] 3 S.C.R. 534, defined damages as “a monetary payment for the invasion of a right at common law”. In Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc., 2015 ONSC 1067 (CanLII), the plaintiff sought damages based off the defendant’s failure to meet its obligations under a Shared Services Agreement. Perell J., beginning at para. 49, noted that the fact that real property is incidentally involved in an action does not necessarily mean that the action is governed by the RPLA. Among the cases he cited was Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., 2012 ONCA 845 (CanLII). In that case, this Court made the following comment, at para. 7:

Finally, we do not think that the [RPLA] applies to the case as framed by the appellant. In its Statement of Claim, the appellant frames its action as one for damages flowing from the respondents’ negligence, breach of contract, conflict of interest, and breach of duty of care, fiduciary duty and statutory duty. None of these relates to the categories of actions encompassed by the [RPLA].

[52]         Thus, had Ms. Yim’s claim been one primarily seeking damages, for example breach of contract, her application would be statute-barred. This would be true even if the claim for damages incidentally related to real property, specifically the condominium that was the subject of her APS. Claims for damages do not fit within the definition of “land” in the RPLA.

[53]         However, Ms. Yim is not seeking damages. She advances a specific claim under a provision in the Act, a provision that only allows for the return of her deposit and interest, not damages. The Tax Court defined a deposit in Casa Blanca Homes Ltd. v. R., 2013 TCC 338 (CanLII), as “a pool of money retained until such time as it is applied in partial payment or forfeited”. As noted by the Alberta Court of Appeal in Lozcal Holdings Ltd. v. Brassos Development Ltd. (1980), 1980 ABCA 72 (CanLII), 111 D.L.R. (3d) 598, “a genuine deposit ordinarily has nothing to do with damages, except that credit must be given for the amount of the deposit in calculating damages”.

[54]         This leads me to the consideration of “money to be laid out in the purchase of land”, a phrase on which there is scant jurisprudence. However, in my view an action for the return of a deposit fits comfortably within its plain meaning. Frankly, I struggle to understand what would fit within this phrase if not an action such as this.

[55]         On the basis of the foregoing analysis, I conclude that Ms. Yim’s application is not statute-barred. This is also true of the amendment of her initial application to specifically claim statutory rescission. As her application is covered by s. 4 of the RPLA, the applicable limitation period is ten years. The application is an action, which is defined as any civil action. She seeks “recovery”, which has been defined as “gaining through a judgment or order”. And the recovery she seeks is of “land”; namely, her deposit, which is money laid out in the purchase of land.

[56]         I would therefore not give effect to this ground of appeal.

Ontario: the limitation of claims on foreign judgments

 

In Independence Plaza 1 Associates, L.L.C. v. Figlioni, the Court of Appeal held that the basic two-year limitation period applies to a claim on a foreign judgment in Ontario, and begins to run, at the earliest, when the time to appeal the judgment has expired or, if there is an appeal, the date of the appeal decision.  Section 5 of the Limitations Act can operate to delay discovery of the claim.

This is a terrific decision from Justice Strathy that settles one of the last unresolved limitations issues.  I wrote about the issue in a now out-of-date section of the Law of Limitations.  Conflicting jurisprudence held that the basic limitation period applied (correctly, I suggested), and that as a proceeding to enforce an order no limitation period applied at all (utterly wrongly, I suggested, in more measured language).      

Justice Strathy’s analysis turns on a close reading of the Limitations Act.  His decision begins with the following: “The correct approach to resolving the two questions raised by this appeal begins and ends with the provisions of the Limitations Act, 2002, which is a comprehensive and exhaustive scheme for dealing with limitation periods”.  I would offer, gently, that the correct approach to a limitations question always begins and ends with the Limitations Act’s provisions, which courts rather often forget, but this mustn’t detract from the really excellent analyses.

The analyses begins where limitations analyses should—with section 2, which describes the application of the Limitations Act:

[31]   Because the proceeding on the New Jersey judgment brought by the respondent in this appeal is a “claim pursued in a court proceeding,” it falls within the comprehensive and exhaustive scheme of the statute.

Having found that the Limitations Act applies, Justice Strathy turned to the application of s. 16(1)(b).

[33]   I turn now to the first question raised in this appeal – whether there is any limitation period applicable to a proceeding on a foreign judgment. Section 16(1) of the Limitations Act, 2002, which had no counterpart in the former statute, created a class of claims that are subject to no limitation period, rather than the “basic” two-year limitation period or the “ultimate” fifteen-year limitation period.

[42]   It falls to this court, as a matter of first impression, to interpret whether s. 16(1)(b) applies to a proceeding on a foreign judgment. The words of s. 16(1)(b) are to be read in light of the language of the provision as a whole, their context within the statutory scheme, and the purposes of the Limitations Act, 2002: see R. v. Hajivasilis, 2013 ONCA 27 (CanLII), 114 O.R. (3d) 337, at para. 23; and Ayr Farmers Mutual Insurance Co. v. Wright, 2016 ONCA 789 (CanLII), at paras. 26, 28-29, 31-32.

[43]   First, therefore, I consider the language of s. 16(1)(b) as a whole.

[44]   Phrases serving parallel functions and associated by the disjunction “or” in a statutory provision influence each other’s meaning. The parallelism “invites the reader to look for a common feature among the terms” to resolve any ambiguities: Ruth Sullivan, The Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 230. The Supreme Court has stated that “a term or an expression should not be interpreted without taking the surrounding terms into account” in order to identify a “common thread”: Opitz v. Wrzesnewskyj, 2012 SCC 55 (CanLII), [2012] 3 S.C.R. 76, at paras. 40, 43.

[45]   In my view, the term “order of a court” in s. 16(1)(b) takes its meaning, in part, from the parallel phrase immediately associated with it – namely, “any other order that may be enforced in the same way as an order of a court” (emphasis added). I observe that a similar parallel phrase is found in s. 19(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that “[a] certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such” (emphasis added).

[46]   The “common feature” or “common thread” linking these parallelisms is the concept of enforceability. Section 16(1)(b) of theLimitations Act, 2002 applies to court orders and to other orders, such as those of persons exercising a statutory power of decision, that are enforceable in the same way as a court order.

[47]   This common thread within s. 16(1)(b) does not extend to foreign judgments. The domestic judgments contemplated by the provision are directly enforceable in Ontario by means of the execution procedures in r. 60 of the Rules of Civil Procedure, including writs of seizure and sale, garnishment, or the appointment of a receiver: Lax, at para. 21. By contrast, like an order of a foreign arbitral tribunal, the debt obligation created by a foreign judgment cannot be directly enforced in Ontario in the absence of reciprocal enforcement legislation such as REJA or REJUKA. A proceeding in Ontario must be brought first: see Lax at paras. 11-13; Yugraneft at para. 45; Chevron Corp. v. Yaiguaje, 2015 SCC 42 (CanLII), [2015] 3 S.C.R. 69, at para. 43. That proceeding may result in a judgment or order of the Ontario court. The resulting order may be enforced as an order of the court, with no applicable limitation period.

[48]   Thus, the judgment of a foreign court is one step removed from being an order of a court for the purpose of s. 16(1)(b) of theLimitations Act, 2002. It is not on the same level as an order of an Ontario court or any other order, such as an order of an Ontario statutory decision maker, which may be enforced as an order of a domestic court. This was adverted to by Feldman J.A. in Lax, at para. 31, in explaining why she did not agree with the approach taken by Cumming J. in Girsberger:

[A]s long as only domestic judgments can be enforced by execution and the other methods discussed above, and therefore foreign judgments must be transformed into domestic judgments or registered before they are enforceable as domestic judgments, there is not parity of treatment.

[49]   There are good reasons for giving different treatment for limitations purposes to the enforcement in Ontario of a judgment of an Ontario court, on the one hand, and a judgment of a foreign court, on the other hand. The principle of territorial sovereignty means that the judgment of a court has effect only inside the territory in which the court is located and cannot be enforced outside its borders: Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws, 2d ed. (Toronto: Irwin Law, 2016), at p. 162. The extraterritorial enforcement of a court’s order is not a legitimate exercise of state power: see Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at p. 1052; Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572, at para. 31;Chevron, at paras. 47-48; and Endean v. British Columbia, 2016 SCC 42 (CanLII), 401 D.L.R. (4th) 577, at para. 45.

[50]   Thus, while a domestic judgment can be enforced as of right in Ontario, it is necessary to bring a proceeding on a foreign judgment. If that proceeding is successful, it will give rise to an Ontario judgment which can be directly enforced in the province.

[51]    Furthermore, a judgment creditor who brings an Ontario proceeding on a foreign judgment must show that the foreign court had jurisdiction and that the judgment is final and for the payment of money (or that it would be appropriate for the Ontario court to recognize it as enforceable within the province even if it is interlocutory or non-monetary): see Pro Swing; Chevron; and Cavell Insurance Co. (Re) (2006), 2006 CanLII 16529 (ON CA), 80 O.R. (3d) 500 (C.A.), at para. 41.

[52]   The foreign judgment debtor is entitled to raise defences to the proceeding, such as fraud, denial of natural justice and public policy: see Beals. These defences “distinguish foreign judgments from local judgments, against which the sole recourse is an appeal”: Janet Walker & Jean-Gabriel Castel, Canadian Conflict of Laws, loose-leaf (Rel. 54-3/2016 Pub.5911), 6th ed. (Toronto: LexisNexis, 2005), at para. 14.3.

[53]   I conclude that the language of s. 16(1)(b) of the Limitations Act, 2002 suggests that the term “order of a court” refers to an order of a domestic court.

[54]   Second, I consider the statutory context of s. 16(1)(b) of the Limitations Act, 2002.

[55]   Section 16(1)(b) also takes its meaning from the surrounding provisions of s. 16. When statutory provisions are grouped together, the legislature is presumed to have drafted each with the others in mind: Inland Revenue Commissioners v. Hinchy,[1960] A.C. 748 (H.L.), at p. 766. They tend to illuminate each other’s meaning because they “share a single idea”: Ruth Sullivan,Statutory Interpretation, 3d ed. (Toronto, Irwin Law, 2016), at p. 175.

[56]   The other provisions grouped together in s. 16 pertain to claims such as family law support awards, sexual assault claims and government claims that are considered so important that, for one policy reason or another, they should have no limitation period at all. For example, the policy reason underlying the exemption for sexual assault claims “is grounded in the likelihood that the dynamic of the relationship will impede the autonomy of the victim”: Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53(CanLII), at para. 40, aff’d, 2012 ONCA 230 (CanLII).

[57]   In this context, it is important to identify the policy reason for including claims “to enforce an order of a court” in the subset of claims that have no limitation period under s. 16. In my view, the reason is that such claims have already passed a limitations hurdle under Ontario law – a court order can only be obtained if the underlying cause of action giving rise to it was not time-barred.

[58]   This was the policy reason suggested by the British Columbia Law Reform Commission, in its 1974 Report on Limitations, for the argument that no limitation period should apply to claims to enforce domestic court orders. As quoted by Newbury J.A. inYoung v. Verigin, at para. 7, the commission wrote:

Furthermore, the successful plaintiff cannot be said to have slept on his rights. He has taken action, and as a consequence recovered judgment. It might be argued, with considerable justification, that no limitation period whatsoever should exist with respect to the enforcement of judgments. It may seem unfair that the plaintiff who has been put to the trouble and expense of obtaining a judgment to enforce a right or obligation should face a further limitation period with respect to the exercise of his rights under the judgment. Why should he not be free to pursue his rights under the judgment at his leisure if he so chooses?

[59]   It follows that the term “order of a court” in s. 16(1)(b) should be interpreted as referring to an order of a domestic court only. A proceeding on a foreign judgment has not passed any Ontario limitations hurdle. If the action on the foreign judgment is successful, it results in an Ontario judgment, which is subject to no limitation period. But that can only be justified if the underlying cause of action based on the foreign judgment has already passed a limitations hurdle in Ontario.

[60]     I find support for this conclusion in the Report of the Ontario Law Reform Commission on the Limitation of Actions (Toronto: Department of the Attorney General, 1969), at pp.50-51. The report stated, at p. 49, that there was good reason to apply the longer twenty-year limitation period in the former Limitations Act to actions on domestic judgments because, in terms later adopted by the British Columbia report, “the successful plaintiff cannot be said to have slept on his rights. He has taken action and, as a consequence, recovered judgment.” However, the report nevertheless recommended that foreign judgments should remain subject to the six-year limitation period governing debts in the former Limitations Act, notwithstanding the artificiality of treating them as simple contract debts.

[61]   It is also noteworthy that several provinces have subjected foreign judgment proceedings to a special limitation period that is distinct from the one that applies to proceedings on domestic judgments. British Columbia’s Limitation Act subjects “local” judgment proceedings to a ten year limitation period in s. 7, but it deals with “extraprovincial judgments” separately. Section 2(1)(l) of Manitoba’s The Limitation of Actions Act, C.C.S.M., c L150, treats “Canadian judgments” differently from other judgments. Newfoundland sets a six-year limitation period on an action “to enforce a foreign judgment” and a ten-year period on actions to enforce a judgment of a court in the province: see Limitations Act, S.N.L. 1995, c. L-16.1, s. 6(1)(g). And Prince Edward Island’sStatute of Limitations, R.S.P.E.I. 1988, c. S-7, s. 2(1)(f) distinguishes between “extraprovincial judgments” and other judgments.

[62]   The statutory context therefore suggests that the language of s. 16(1)(b) of the Limitations Act, 2002 is confined to orders of domestic courts.

[63]   Third, and finally, I consider s. 16(1)(b) in light of the purposes of limitations statutes.

[64]   It would be contrary to the purposes of limitations statutes to interpret s. 16(1)(b) as exempting foreign judgments from any limitation period. If it were always possible to bring a proceeding on a foreign judgment in Ontario without time limitation, no matter when and where it was obtained, the debtor would be indefinitely exposed to the prospect of defending such proceedings in Ontario. As was pointed out in the Ontario Law Reform Commission’s report at p. 50, problems associated with the preservation and reliability of evidence are especially pronounced for foreign judgment debtors. This militates in favour of having some limitation period apply to proceedings on foreign judgments. As well, exempting such proceedings from a limitation period would not encourage diligence or reasonable dispatch on the part of the foreign judgment creditor, who, unlike domestic judgment creditors, has not already surmounted an Ontario limitations hurdle.

[66]   I conclude, therefore, that s. 16(1)(b) of the Limitations Act, 2002 does not apply to proceedings on foreign judgments, and the applicable limitation period for the respondent’s proceeding on the New Jersey judgment at issue in this appeal is the basic two-year period in s. 4. The result is that time begins to run when the claim is “discovered” within the meaning of s. 5. I turn to that question next.

Justice Strathy then considered when time begins to run on a claim on a foreign judgment in Ontario:

[70]   The test under the Limitations Act, 2002 is not whether the judgment is “final”; it is when the claim is discovered, a fact that is ascertained through the application of s. 5(1), aided by the presumption in s. 5(2).

[71]   I acknowledge the point made by Newbould J. in PT ATPK that, in the context of s. 5(1) of the Limitations Act, 2002, a proceeding on a foreign judgment does not fall particularly neatly into the definition of “claim” as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” However, the statute was meant to be comprehensive and exhaustive.Section 2(1) provides that it applies to “claims pursued in court proceedings,” and s. 4 provides that the basic two-year limitation period applies “unless this Act provides otherwise.”

[72]   The words “injury, loss or damage” in s. 5(1) can reasonably refer to the debt obligation created by a foreign judgment and owed by the foreign judgment debtor to the creditor. The “act or omission” can reasonably refer to the debtor’s failure to discharge the obligation once it became final. Viewed in this light, s. 5(1) can reasonably be viewed as applying to a proceeding on a foreign judgment.

[74]   Section 5(1) provides that a claim is discovered on the earlier of: (a) the day on which the claimant first knew, among other things, “that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”; and (b) the day on which “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)”. The test in s. 5(1)(a) has been referred to as a “subjective test” because it looks to the claimant’s actual knowledge, and the test in s.5(1)(b) as a “modified objective” test because it looks to what a reasonable person with the abilities and in the circumstances of the claimant ought to have known: see Ferrera v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONCA 851 (CanLII), 113 O.R. (3d) 401, at para. 70; and Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16 (CanLII), at para. 35.

[75]   In 407 ETR Concession Co. v. Day, 2016 ONCA 709 (CanLII), at para. 48, Laskin J.A. explained that “one reason why the legislature added ‘appropriate means’ [in s. 5(1)(a)] as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation.” “Appropriate” means “legally appropriate.” For example, a tactical choice to delay commencement of a proceeding to engage in settlement discussions after a loss, injury or damage is known does not make the proceeding inappropriate: Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218 (CanLII), 109 O.R. (3d) 652, at para. 24.

[76]   Appropriateness must be assessed on the facts of each case, and case law applying s. 5(1)(a)(iv) is of limited assistance:Brown v. Baum, 2016 ONCA 325 (CanLII), 348 O.A.C. 251, at para. 41. However, it is noteworthy that courts have held that a proceeding is not legally appropriate until other mechanisms for resolving a dispute, such as a statutory remedial process, have been exhausted: see 407 ETR, at para. 40; U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103(CanLII), at paras. 22-25; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 (CanLII), at paras. 52-57, aff’d, 2015 ONCA 847 (CanLII); and Mew, at pp. 95-96.

[77]   In the usual case, it will not be legally appropriate to commence a legal proceeding on a foreign judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted. The foreign appeal process has the potential to resolve the dispute between the parties. If the judgment is overturned, the debt obligation underlying the judgment creditor’s proceeding on the foreign judgment disappears.

[79]   To regard a claim based on the foreign judgment as discoverable and appropriate only when all appeals have been exhausted is also consistent with the observations of Rothstein J. in Yugraneft. He stated, at para. 57, that the limitation period to enforce a foreign arbitral judgment under Alberta’s Limitations Act starts to run when the time to appeal the judgment has expired or, where an appeal is taken, the date of the appeal decision.

[79]   To regard a claim based on the foreign judgment as discoverable and appropriate only when all appeals have been exhausted is also consistent with the observations of Rothstein J. in Yugraneft. He stated, at para. 57, that the limitation period to enforce a foreign arbitral judgment under Alberta’s Limitations Act starts to run when the time to appeal the judgment has expired or, where an appeal is taken, the date of the appeal decision.

[80]   Finally, as the application judge noted, this approach avoids the risk of multiplicity of proceedings by not requiring the judgment creditor to commence a proceeding on a foreign judgment in Ontario before all proceedings in the foreign jurisdiction have run their course. It furthers the purpose of s. 5(1)(a)(iv) of the Limitations Act, 2002 by deterring the unnecessary litigation that may result from commencing an Ontario proceeding on a foreign judgment that is subsequently overturned.

[82]   In a particular case, a claim based on a foreign judgment may not be discovered under s. 5 of the Limitations Act, 2002 until such time as the judgment creditor knew or ought to have known that the judgment debtor had exigible assets in Ontario and could be served with process: see Yugraneft at paras. 49. 58, 61. As s. 5(1)(b) makes clear, the discoverability assessment, including the appropriateness criterion, must take account of the factual context and the plaintiff’s actual circumstances, and I reiterate that each case must be decided on its own facts: see 407 ETR, at paras. 34, 45-46.

These are the other noteworthy aspects of the decision:

  • Justice Strathy uses the language of proceeding—”When does time begin to run a proceeding”.  This is the correct way to engage with the commencement of time, because the Limitations Act bars proceedings, not claims or causes of action.  One sees this accuracy, and the accordant conceptual clarity, quite infrequently.
  • Justice Strathy provides a succinct overview of the purposes of statutes of limitations, which is now the leading Ontario authority for the principles (and, forgive me for adding, cites the Law of Limitations):

[19]   Limitations statutes reflect public policy about efficiency and fairness in the justice system. There are three broad policy justifications for limitation statutes: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (CanLII), [2013] 1 S.C.R. 623, at paras. 231-234.

[20]   First, they promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts: Hare v. Hare (2006), 2006 CanLII 41650 (ON CA), 83 O.R. (3d) 766 (C.A.), at para. 41. They reflect a policy that, after a reasonable time, people should be entitled to put their business and personal pasts behind them and should not be troubled by the possibility of “stale” claims emerging from the woodwork.

[21]   Second, they ensure the reliability of evidence. It is inefficient and unfair to try old claims because evidence becomes unreliable with the passage of time. Memories fade, witnesses die and evidence gets lost. After a reasonable time, people should not have to worry about the preservation of evidence: K.M. v. H.M., 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at p. 30.

[22]   Third, and related to this, limitation periods promote diligence because they encourage litigants to pursue claims with reasonable dispatch.

[23]   Other justifications have been given, including the interest in the efficient use of public resources through the expeditious resolution of disputes and the desirability of adjudicating disputes on the basis of contemporary values and standards: see Graeme Mew, The Law of Limitations, 3d ed. (Toronto, LexisNexis, 2016), at pp. 16-18.

  • Justice Strathy also provides a very succinct overview of the legislation history of the Limitations Act:

[28]    The Limitations Act, 2002 was the culmination of several attempts, beginning in the late 1960s, to reform, consolidate and simplify the law of limitations in Ontario. The history of those attempts was set out by Weiler J.A. in York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., 2007 ONCA 49 (CanLII), 84 O.R. (3d) 414, at paras. 27-30. See also McConnell v. Huxtable, 2013 ONSC 948 (CanLII), 113 O.R. (3d) 727, at paras. 62-73, aff’d, 2014 ONCA 86 (CanLII).

[29]   The purpose of the new statute was to replace a complex, obscure and confusing regime of multiple limitation periods with a simple and comprehensive scheme. The new scheme consists of a basic two-year limitation period applicable to most claims, an “ultimate limitation period” of fifteen years and a statutorily-enshrined discoverability principle. It was intended to promote certainty and clarity in the law of limitation periods: see Dilollo Estate (Trustee of) v. I.F. Propco Holdings (Ontario) 2013 ONCA 550 (CanLII), 36 Ltd., 2013 ONCA 81, 117 O.R. (3d) 81, at para. 61.

Ontario: the Court of Appeal can’t let go of the cause of action

The Court of Appeal’s endorsement in Kolosov v. Lowe’s Companies Inc. reads as if it were delivered 15 years ago when the former Limitations Act was still in force.

The Court of Appeal states the following about the law of the limitation of the intentional torts of false arrest and false imprisonment:

[11]      The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 (CanLII), at para. 16:

A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79 (CanLII),[2007] O.J. No. 397 (Ont. C.A.), para. 102).

In other words, the Court is stating that the limitation period commences when the cause of action accrues, the cause of action in question accrued on the date of the arrest, and so this is when the limitation period commenced, and no fact (such as when full police disclosure occurred), could alter this analysis.

This is plainly wrong.  Where to begin? Let’s try first principles:

  1. The Limitations Act applies to all claims pursued in court proceedings.
  2. The Limitations Act applies to claims, not causes of action. The language “cause of action” does not appear in the Limitations Act.  The accrual of a cause of action hasn’t determined the commencement of limitation period since 2004 when the Limitations Act came into force.
  3. Section 5 determines the commencement of the limitation period. It’s a factual analysis.  A fact such as when full police disclosure occurs may well have an impact on the discovery analysis.

This kind of anachronistic analysis does the law no favours.  The limitations scheme is confusing enough ; wonky outlier decisions like this aren’t helpful.

Ontario: discovery doesn’t require knowledge of culpability

Update: The Supreme Court denied leave to appeal.

In Dale v. Frank, the Court of Appeal reiterated that discovery of a claim doesn’t require knowledge that the defendant’s act or omission was culpable.  To require a plaintiff to know with certainty that the defendant’s wrongful conduct caused her injuries would require her to come to a legal conclusion as to the defendant’s liability.  This is too a high a bar, and not what s. 5(1) of the Limitations Act requires.

The Appellants also argued that the motion judge erred by failing to consider s. 5(1)(a)(iv) of the Limitations Act in her analysis. The Court of Appeal rejected this argument.  The reasons permitted the inference that the motion judge considered this discovery matter:

[9]         We are not persuaded by this submission. Although the motion judge did not undertake a distinct analysis under this provision, her conclusion that each of the appellants knew or ought to have known of the other elements in s. 5(1)(a) was sufficient to infer that she also concluded that the appellants knew or ought to have known that a proceeding would be an appropriate means to seek a remedy for their losses even before the 2011 press release about Dr. Frank.

Unfortunately, in making this point the Court quoted its decision in Lawless for the principle that discovery requires the prospective plaintiff to know the material facts necessary to make a claim.  Knowledge of the material facts of the claim does not include knowledge of the matter in s. 5(1)(a)(iv)—that a claim is an appropriate remedy to the loss.  It’s disappointing to see the Court of Appeal continuing to rely on Lawless, given the mischief it causes.

 

Ontario: Limitations Act doesn’t apply to applications for attorney compensation

In April, I reported that in Armitage v. The Salvation Army, Justice Ray held wrongly that the limitation period for claiming compensation as a property attorney commences on the death of the person who granted the power of attorney.  I wrote that the Limitations Act doesn’t apply to such an application.  In December, the Court of Appeal agreed.

Armitage brought applications to pass her accounts as attorney for property and as estate trustee.  The Salvation Army filed notices of objection in both proceeding raising a limitations defence.  Justice Ray held that the death of the person who granted the power of attorney terminated the continuing power of attorney and was the commencement of the applicable limitation period.  The applications were accordingly timely.

Not so, I wrote.  While there may be sound policy reasons for limiting a claim for attorney’s compensation after the death of the grantor, no limitation period applies to such an application.  The application is not a “claim” within the meaning of the Limitations Act because it doesn’t seek to remedy loss resulting from an act or omission.  If it’s not a “claim”, the basic and ultimate limitation periods can’t apply.  In fairness to Justice Ray, we noted that neither party raised this point.

Armitage raised the point on appeal, and Justice Hourigan accepted it:

[19]      While I agree with the result reached by the application judge, I disagree with his conclusion that the Limitations Act, 2002had any application in the circumstances of this case. As I will discuss below, in my view, the Limitations Act, 2002 does not apply because compensation for an attorney for property through the passing of accounts process does not constitute a “claim” within the meaning of the Limitations Act, 2002.

[20]      It is useful to briefly consider the nature of compensation for attorneys for property and how the passing of accounts process works. An attorney for property is a fiduciary and has an obligation under s. 32(6) and 38(1) of the SDA to, among other things, keep accounts of all transactions involving the property.

[21]      The attorney for property may bring an application to the Superior Court to have his or her accounts approved. Through that process, the attorney for property may also seek court approval of compensation for his or her services. The responding parties to the application have an opportunity to file a notice of objection to the accounts, and to object to the compensation that the attorney for property proposes to take or has taken.

[22]      Where the attorney for property has not commenced an application for the passing of accounts, an interested party may bring an application under s. 42(1) of the SDA to compel the passing of accounts.

[23]      As noted by Matthew Furrow and Daniel Zacks in their very recent article “The Limitation of Applications to Pass Accounts” (2016) 46 Adv. Q. 2, historically in Ontario there was no statutory limitation period for the passing of accounts. The only bars were the equitable defences of laches and acquiescence. The question becomes whether the enactment of the Limitations Act, 2002changed the law and imposed the general two-year limitation period on claims for compensation for attorney for property.

[24]      At first blush it would appear that such claims might be captured by the general limitation period. The Limitations Act, 2002 was designed to comprehensively deal with all manner of civil claims, whether grounded in equity, law, or statute. There are specific carve outs in the legislation for claims that are not subject to the Act. It is arguable, therefore, that if compensation for attorneys for property was intended to be exempted from the general limitation period it would have been specifically exempted under the Limitations Act, 2002.

[25]      The difficulty with that argument is that the Limitations Act, 2002 applies only to the assertion of a “claim”, and a claim is defined in the Act as follows: “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”

[26]      The appellant submits that the right under the SDA to seek compensation is a new statutory right and, as with all rights, where there is a right there must be a remedy. Further, the appellant argues that the respondent’s claim for compensation fits within the statutory definition of a claim. Counsel for the appellant submits that in seeking compensation at this time the respondent has suffered a loss because she chose not to seek self-help and take her compensation earlier. He goes on to argue that this loss is the result of the respondent’s omission in failing to claim compensation earlier.

[27]      I am unable to accede to this rather circular argument. The fact is that in seeking court approval of the passing of accounts, an attorney for property is not seeking redress for any loss, injury, or damage. Rather, he or she is seeking approval from the court of his or her actions in managing the property, including approval for compensation previously taken or now sought. A passing of accounts application is the opposite of remedial; it is a process that seeks a court order that no remedy is necessary with respect to the accounts: see Furrow and Zacks, at pp. 9-10. Thus, the passing of accounts does not fit within the first part of theLimitations Act, 2002 definition of claim.

[28]      An application for the passing of accounts also does not fit within the second part of the statutory definition of claim. Where the definition speaks of an act or omission, it must surely refer to an action taken or not taken by a third party that has the effect of causing loss, injury, or damage. It would be a strange result if a limitation period could not be triggered until the party asserting the claim took an action or omitted to do something.

[29]      The result, in my view, is that a passing of accounts under the SDA is not subject to the two-year general limitation period found in the Limitations Act, 2002.[1] The common law in that regard was not changed with the enactment of that legislation. Consequently, the only defences available are the equitable defences of laches and acquiescence, neither of which were asserted in the present case.

Obviously, I think this is sound reasoning (based as it is on a paper I wrote with my colleague Matthew Furrow).

Importantly, Justice Hourigan explicitly not does hold that the Limitations Act has no applicability to the passing of accounts process under the SDA:

[1] I do not mean to categorically provide that the Limitations Act, 2002 has no applicability to the passing of accounts process under the SDA. In particular, it may be that the filing by a beneficiary of a notice of objection after an attorney has sought a passing of accounts is a claim within the meaning of the Limitations Act, 2002. However, I leave this determination to another case where it arises directly on the facts.

In our paper, Matthew and I argue a notice of objection that asserts a claim within the meaning of the Limitations Act is subject to its limitation periods.  Send me a note if you’d like a copy.

Ontario: Appealing from an order dismissing an OBCA claim as statute-barred

An appeal from a final order made under the Business Corporations Act is to the Divisional Court even where the order dismisses the proceeding as statute-barred.

In 1186708 Ontario Inc. v. Gerstein, the plaintiffs brought a motion under s. 246 of the Business Corporations Act.  The motion judge found it statute-barred by the expiry of the limitation period.  The Court of Appeal held that the Divisional Court had jurisdiction:

[7]         Under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this court from “a final order of a judge of the Superior Court of Justice, except … an order from which an appeal lies to the Divisional Court under another Act” (emphasis added).  Under s. 255 of the OBCA, “[a]n appeal lies to the Divisional Court from any order made by the court under this Act.”
[8]         There is no dispute that the Order is a final order.
[9]         Paragraph 1 of the Order flowed from a motion for leave to commence a derivative action under s. 246 of the OBCA.  We acknowledge that the claim was found to be statute-barred and leave refused on that basis.  We also acknowledge that the determination that the claim was statute-barred was made under the Limitations Act, 2002, not the OBCA.  However, para. 1 of the Order disposed of the motion which was brought under s. 246 of the OBCA.  Given the broad scope afforded to s. 255 of the OBCA in this court’s jurisprudence, it is our view that para. 1 of the Order is an order within the meaning of s. 255 of the OBCA: see Amaranth L.L.C. v. Counsel Corp. (2004), 2004 CanLII 10897 (ON CA), 71 O.R. (3d) 258 (C.A.); and Ontario Securities Commission v. McLaughlin, 2009 ONCA 280 (CanLII), 248 O.A.C. 54.

 

Ontario: It’s still a two-year limitation period for IRB claims

 

In Bonilla v. Preszler,  the appellant argued that the respondent’s termination notice for her Income Replacement Benefits was not clear and unequivocal and that the applicable limitation period was “rolling”.  This was a futile position and the Court of Appeal rejected it.

[10]      It is well established in this court’s case law that the limitation period is triggered by a single event, which is the refusal of an insurer to pay the IRB claimed: see e.g. Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34 (CanLII), 129 O.R. (3d) 544 and Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 (CanLII), 118 O.R. (3d) 713. The appellant was informed on February 4, 2003 that she would not receive IRB after February 27, 2003. Even taking the later of these two dates, February 27, 2003, as the date of the refusal, the two-year limitation period expired February 27, 2005. The appellant’s action is several years late.

[11]      The appellant submits that this court’s prior cases are either distinguishable or are wrongly decided and offers several arguments in support. She submits that the limitation period covers only the amount of a benefit claimed, and not the nature of the benefit; that the cause of action for IRB is an “entitlement to indemnification”; that the amount claimed is limited to an amount accrued or crystallized, rather than future benefits; and that the common law discoverability rule applies.

[12]      We do not accept any of these arguments. In our view the operation of the limitation period under the legislation is clear and straightforward. It is well settled in the case law of this court, and it would be inappropriate for a three-judge panel of the court to overrule a prior decision of the court in any event. We note that the appellant requested, and was denied, a five-judge panel for this appeal.

Ontario: A limitations defence must be pleaded

In Singh v. Trump, Justice Perell dismissed a plaintiff’s claim as time-barred despite the defendants not pleading the Limitations Act, seeking leave to amend to plead it, or raising it in their written submissions.  His reasons neither refer to the fact that the defence was not pleaded nor explain why, in the absence of the plea, he should invoke the Limitations Act.

In the circumstances, the Court of Appeal found that it was not appropriate for Justice Perell to invoke the Limitations Act and dismiss the claim as statute-barred.  A limitations defence is an affirmative defence and must be pleaded.  Justice Rouleau’s decision provides a helpful overview of the relevant jurisprudence:

[132]   This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685 (CanLII), [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held “applies to pleadings relating to limitations that might bar an action”: S. (W.E.) v. P. (M.M.), at para. 37. Rule 25.07(4) provides as follows:

In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading.

[133]   Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826 (CanLII), 225 A.C.W.S. (3d) 237, at para. 69:

The failure to raise substantive responses to a plaintiff’s claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of theRules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.

[134]   In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts “have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action”: at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:

If S had raised the issue in his pleadings, P might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for P might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied (at para. 38).

[135]   MacPherson J.A. also noted that at no time during trial, including during closing arguments when the trial judge raised the limitation issue, did S seek to amend his pleadings. Nor did he seek such an amendment during the appeal hearing.

[136]   In my view, the defendants’ failure, in this case, to plead a Limitations Act defence or even to seek an amendment to their pleading to do so is, as it was in S. (W.E.) v. P. (M.M.), fatal.