Statutory cross-pollination

ONTARIO: The Limitations Act still has nothing to do with the Consumer Reporting Act

The plaintiff in Grant v. Equifax Canada Co advanced a quite clever, but entirely incorrect argument that the Limitations Act applies to the Consumer Reporting Act, which we wrote about here.

The Court of Appeal upheld the motion judge’s decision rejecting the argument:

[5]         The CRA provides for a regulatory scheme for the fair reporting of information regarding an individual’s history of credit activities. The CRA requires the registration of consumer reporting agencies, permits consumer reporting information to be provided only for certain prescribed purposes, and sets out standards for consumer reporting.

[6]         The Limitations Act, 2002, by contrast, applies to bar “claims pursued in court proceedings” that are commenced outside the applicable limitation period. The Act does not apply to the CRA, whether expressly or by implication. Indeed, the CRA contains its own specific provisions prohibiting the inclusion of certain information in consumer reports, including debts or collections more than seven years old, unless confirmation that the debt or collection is not barred has been obtained. The CRA expressly contemplates that debts not reduced to judgment that are up to seven years old may be reported (see s. 9(3)(f)). This makes sense, as the passing of a limitation period does not extinguish a debt; it only precludes the commencement of a court proceeding for its enforcement. As such, the reporting of debts after a limitation period has passed, is not inconsistent with the purposes of the CRA, and is expressly contemplated by its terms.

 

Ontario: Nice try, the but the Limitations Act doesn’t apply to the Consumer Reporting Act

The Limitations Act does not restrict the timeframe for reporting consumer debts under the Consumer Reporting Act (“CRA”).

The Applicant in Grant v. Equifax sought an order requiring two consumer reporting agencies to remove debts over two years old on his credit report pursuant to the Limitations Act.

The Applicant’s position was quite clever, especially for a self-represented litigant:

[10]           According to the Applicant, the two year limitation period for commencing an action under the Limitations Act should apply to the time frame for reporting consumer debts under the CRA. The applicant argues that the best evidence of the existence of a disputed debt is when judgment is obtained for that debt.

[11]           The Applicant explains that is unfair for consumer debts over two years old to be reported on consumer credit reports. This is because after the two year limitation period under the Limitations Act has expired, the debtor cannot bring an action to collect the debt. Therefore, a debt that can no longer be collected should not be reported on a credit report.

[12]           Section 9(1) of the CRA requires the consumer reporting agency to adopt procedures necessary to ensure accuracy and fairness in the contents of its consumer reports. The Applicant submits that since no court action can be commenced to recover debts over two years old, any disputed debts over two years old recorded on consumer reports are not the most accurate record of the debt. He explains that for reported debt over two years old, the most accurate record of such a debt is a debt that has been confirmed by an order of a court. Therefore, the Applicant argues that the consumer reporting agencies are not in compliance with s. 9(1) of the CRA when they report consumer debts over two years old which have not been confirmed by the order of a court.

What the Applicant failed to appreciate is that the Limitations Act has no application to the CRA.  The statutes have entirely different, unrelated purposes: the Limitations Act limits the commencement of proceedings in respect of claims; the CRA governs the reporting of debts on consumer reports.  As Justice Barnes noted, there is nothing in the Limitations Act that extends its application to the CRA, nor is there anything in the CRA which contemplates the application of the Limitations Act.  If it was the intention of the legislature that the provisions of the Limitations Act apply to the CRA, it would have expressly stated so.