Ontario: confusion in the Court of Appeal on the historical limitation of demand obligations

The Court of Appeal decision in Michel v. Spirit Financial Inc. includes the following paragraph that compels me to pedantry:

[14]      The trial judge made a finding of fact that all the advances made by Michel to Kramer and Spirit were loans. The loans were advanced from 2000 to 2009, during which time the Limitations ActR.S.O. 1990, c. L.15 was largely replaced by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. On January 1, 2004 the basic limitation period for demand loans was changed from six years from the date of the loan to two years from the date of the demand: Hare v. Hare2006 CanLII 41650 (ON CA)83 O.R. (3d) 766 (C.A.), at para. 11 and Limitations Act, 2002, at s. 5.

Here are the issues:

  1. The Limitations Act didn’t change the limitation of demand loans when it came into force on January 1, 2004. Section 5(3) wasn’t present in the initial version of the Limitations Act, which didn’t address the discovery of a claim arising from demand obligations at all.The Court cites Hare, but Hare actually holds that, under the version of the Limitations Act in force when it was decided, a demand obligation was actionable as of the funds being advanced and not the date of the demand.  This was manageable under the Former Act, which applied a six-year limitation period, but it’s problematic with a two-year limitation period.  This caused the Legislature to amend the Limitations Act in 2008 to add s. 5(3), which makes presumptive discovery of a claim arising from a demand loan the date of the demand for repayment.

    Frankly, it’s surprising that the Court would misstate the development of the law so materially.

  1. It’s misleading to say that the Limitations Act “largely” replaced the Former Act. The Limitations Act and the RPLA together entirely replaced the Former Act.  To be fair, the RPLA is Part I of the Former Act repackaged, and in that sense the Limitations Act only partially replaced the Former Act.  Nevertheless, this statement suggests that some part of the Former Act remains in force.  It doesn’t.

Ontario: For limitation purposes, an “Undertaking” can be a demand obligation

In Bossio v. Nutok Corporation, Justice Kershman held that a document referred to as an “undertaking” can still be a demand obligation for the purposes of section 5(3) of the Limitations Act, 2002:

 [224]     While the demand in the case at hand is referred to as an Undertaking, it does not set out the specific amount of debt owing, and it is not signed by the lenders or their authorized agents, the Court finds that, on this particular set of facts, sufficient demand has, nonetheless, been made (See: Dow v. Canadian Commercial Bank, 1986 CarswellOnt 4633, at paras 20 and 26). The Court is persuaded by the fact that the demand provided notice in writing, required immediate repayment via an immediate payment plan, set a deadline for repayment, as well as a reasonable period of time for repayment of 50% of the debts. Moreover, the fact that Mr. Bossio signed the demand ensured that notice was provided and received by the borrower, fulfilling the underlying purpose of the demand: to notify the borrower of the lender’s “right to immediate repayment of such loans”.

Justice Kershman found that the demand was delivered more than two years before the action was commenced, and was therefore barred by the expiry of the limitation period. If you’d like a reminder why the lender’s delivery of a demand causes the limitation period to commence, notwithstanding the apparent meaning of section 5(3), see the Court of Appeal decision in Hare v. Hare.

Ontario: Condo owners take note, a special assessment may not be a demand obligation

Valentina Vasilescu Tarko et al. v. Metropolitan Toronto Condominium Corporation 626 (MTC 626) et al. holds that a special assessment levied on a condo owner is not a demand obligation within the meaning of section 5(3) of the Limitations Act, 2002. The section provides as follows:

Demand obligations

For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

Because the assessment provided a date for repayment, it wasn’t a demand obligation:

The appellants suggested that the Special Assessment was subject to s. 5(3) of the Limitations Act concerning demand obligations. A debt obligation that does not specify a date for repayment is a demand obligation. See Skuy v. Greenough Harbour Corp., 2012 ONSC 6998 (CanLII), 10 B.L.R. (5th) 146, at para. 31. The 2011 Special Assessment was made payable in three instalments, the first of which was July 1, 2011. Accordingly, the Special Assessment was an obligation which did specify a date when it was payable and it is not therefore a demand obligation. Section 5(3) of the Limitations Act has no application.

In his decision, Justice Marrocco also emphasised that there is no requirement for a limitations decision to refer to the specific wording of the Limitations Act,2002:

The appellants argued that the Deputy Judge’s oral reasons did not refer to the specific wording of the Limitations Act. The Deputy Judge was not required to refer to the specific wording of the Limitations Act.  A review of the oral reasons reveals that the Deputy Judge considered the relevant factors set out in s. 5(1) of the Limitations Act in deciding to stay the appellants’ claim. The Court of Appeal in Ali v. Triple 3 Holdings Inc., 2002 CanLII 45126, at para. 4,¸stated that “an appellate court should not presume that the judge of first instance was not aware of or failed to apply the appropriate legal test merely because the test is not explicitly set out in the judge’s reasons.” A judge’s reasons are adequate if they demonstrate that judge has considered the relevant factors and important issues in the case. In R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 42, the Supreme Court quoted with approval the words of Major J. in R. v. R.(D.), [1996[ 2 S.C.R. 191: “where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere.”

This is a point that bears remembering when considering whether to appeal from a limitations judgment, particularly from a judgment of the Small Claims Court.