In Conde v. Ripley et al., Justice Dunphy held that the limitation period applicable to a claim under section 2 of the Fraudulent Conveyances Act depends on whether the claim is to recover land, in which case the ten year limitation period in the Real Property Limitations Act applies, or for personal property, in which case the general two year limitation in the Limitations Act, 2002 applies.
Section 2 of the FLA entitles a person to commence an action against a transferee of real or personal property to declare the transfer to be void as against “creditors or others” where there was fraudulent intent.
The defendants in Conde argued that such an action is subject to the Limitations Act alone. In a well-reasoned and correct decision, Justice Dunphy rejected this position.
Section 2(1)(a) of the Limitations Act provides that the Act doesn’t apply to proceedings subject to the RPLA. Section 4 of the RPLA applies to “an action to recover any land”. If the two year limitation period in the Limitations Act applied to an FCA action seeking to invalidate a transfer of an interest in land while the claim to the land itself is subject to the ten year RPLA limitation period, it would be “inconsistent in the extreme”; the action to set aside the transfer would be barred before the action to claim the interest. This result, Justice Dunphy noted, “appears contrary to common sense”. (I wonder whether it is the two year limitation period that would apply to the FCA claim under the Limitations Act; section 16(1)(a) provides that no limitation period applies to claims that seek only a declaration–ie, that a transfer of land is void).
The problem with the defendants’ position was their confusion between standing to bring a claim under the FCA and the nature of the FCA claim itself:
[40] In arguing for a two year limitation period, the moving parties have confused standing to bring a claim under the FCA with the nature of the FCAclaim itself. Standing – which is granted by s. 2 of the FCA to “creditors or others” – is to be distinguished from the nature of the action itself. As I have explained at some length, standing to bring FCA claims is granted to “creditors or others” whereas a claim, once brought by a creditor with standing, has many of the characteristics of a class proceeding. For limitations purposes, in my view, it is necessary to consider the nature of the FCA claim and not the standing of the individual claimant.
[41] An FCA claim, if successful, does no more or less than invalidate the impugned transfer as against “creditors or others” of whom the plaintiff is obviously an exemplar. Where the conveyance attacked is of real property, such an action is thus quite literally an “action to recover land” since the outcome of the action, if successful, is to “recover” the land to the estate of the transferor (in this case Mr. Ripley) so that – once so recovered – it can respond to the claims of creditors or others as if it had never been transferred. The outcome of the plaintiff’s claim against the transferor may well be a money judgment – the outcome of the claim against the transferee under the FCA is an order “to recover land” which is then available to satisfy that claim.
[42] Importantly, even if the underlying claim of the “creditor or others” is a money claim, the outcome of an FCA action is not a money judgment ordering the transferee to pay that claim. The transferee may well pay the judgment to free the property of the claim – if they so choose. That, however, is a consequence of choice and not of the order made.
Justice Dunphy found nothing regrettable about the two separate limitation periods applying to FCA actions:
[44] This might seem somewhat inelegant or even regrettable. In my view, it is neither. It is simply the by-product of the FCA being a descendent of a very old statute going back literally hundreds of years upon which has been overlaid a more comprehensive and newly-elaborated system of limitation periods than formerly applied. FCA actions were once considered to be actions for which no limitation period specifically applied. The Legislature has seen fit to change that, and in so doing, to differentiate between actions involving recovery of land and other types of actions. The result, when applied to this old statute, is what I have described.
It’s also worth noting Justice Dunphy’s rather pithy reminder that for the purposes of the limitation period, the law will impute a solicitor’s knowledge on her client:
[67] The limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence: Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 (CanLII) at para. 56. The plaintiff here had the facts but chose to disbelieve them due to a search conducted without due care and accepted without sufficient examination. As between the two, it may well be that the solicitor should have found what her client failed to, but I must attribute the knowledge of one to the other.
[68] To hold otherwise would be, in my view, to provide a solicitor’s negligence exception to the Limitations Act, 2002. While such a development would, I have no doubt, warm the hearts of lawyer insurance providers everywhere, I can find no support for it in the statute. Section 5(1)(b) requires the application of an objective test to a consideration of the subjective capacities of the plaintiff.