The decision in Beniuk v. Leamington (Municipality) affirms an esoteric aspect of real property limitations (though to be fair, most aspects of the RPLA are esoteric). It affirms that the presence of a messuage doesn’t necessarily engage the RPLA.
The plaintiffs argued that the tort of private nuisance to land was effectively an action to recover messuages and therefore subject to the s. 4 limitation period, which applies to actions for recovery of land. Section 1 of the RPLA defines land to include “messauges”—a dwelling house, its out buildings, the area immediately surrounding the dwelling, and adjacent land appropriate to its use. Whether or not the property was a messuage, the action concerned land, but was not to recover land.
The Divisional Court has confirmed that the entitlement to an order granting leave nunc pro tunc to commence a derivative action under s. 26 of the Business Corporations Act requires bringing the leave motion within the limitation period.
In 1186708 Ontario Inc. v. Gerstein, the appellants appealed from the order dismissing their motion as statute-barred arguing that the Supreme Court decision in Green (which set out the principles of the nunc pro tunc doctrine) applies only to leave applications under the Securities Act and not under other statutes.
The Divisional Court disagreed. There was no basis not to apply the Court’s analysis in Green regarding the Securities Act to the Business Corporations Act (and probably any other statute).