{"id":1198,"date":"2021-12-31T12:21:50","date_gmt":"2021-12-31T16:21:50","guid":{"rendered":"http:\/\/limitations.ca\/?p=1198"},"modified":"2021-12-31T12:21:50","modified_gmt":"2021-12-31T16:21:50","slug":"ontario-no-limitation-period-applies-to-a-request-to-fix-costs","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1198","title":{"rendered":"Ontario: No limitation period applies to a request to fix costs"},"content":{"rendered":"

In Craven v. Osidacz<\/em><\/a>, the plaintiff asked the court to fix costs for a motion heard in 2010.\u00a0 The defendant objected based on an expired limitation period.\u00a0 The Superior Court held that no limitation period applies to a request to fix costs pursuant to s. 16(1)(b)<\/a> of the Limitations Act because the plaintiff was seeking to enforce a court order, and because the request was not a \u201cclaim\u201d as defined by s. 1<\/a>.<\/p>\n

The court held that \u201cit is not clear that the plaintiff\u2019s request for costs constitutes a \u2018claim\u2019\u201d.\u00a0 This is correct; indeed, it\u2019s beyond argument, and a little more certainty in the court\u2019s statement would have been warranted.\u00a0 As Kaynes <\/em><\/a>and Grant Thorton<\/em><\/a>\u00a0hold, the \u201cclaim\u201d derives from a cause of action, and is sometimes functionally the same.\u00a0 A litigant doesn\u2019t assert a cause of action when asking the court to fix costs, it asks the court to enforce an order.\u00a0 Costs themselves aren\u2019t a cause of action, but the exercise of judicial discretion pursuant s. 131 of the Court of Justice Act<\/em><\/a>.<\/p>\n

The court\u2019s consideration of the meaning \u201cclaim\u201d at paras. 36-38 is extensive and well-reasoned, but it would have been sufficient to refer to the principles set out in Kaynes <\/em>regarding the meaning and function of \u201cclaim\u201d.<\/p>\n

The court\u2019s discussion of s. 16(1)(b) was unnecessary, but will be useful to anyone considering its application:<\/p>\n

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[<\/a>30]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0The\u00a0Limitations Act<\/i>\u00a0does not apply to the costs of the two motions because, as provided for in s. 16(1)(b) of the\u00a0Act<\/i>, there is \u201cno limitation period in respect of a proceeding to\u00a0enforce an order of a court<\/u>, or any other order that may be enforced in the same way as an order of the court.\u201d<\/p>\n<\/blockquote>\n<\/div>\n

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[<\/a>31]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Because both Lofchik J. and Harper J. ordered that the costs of the two motions be reserved for the trial judge, it is arguable that the plaintiff is in essence seeking to\u00a0enforce an order of the court<\/i>\u00a0and is not bound by the limitation periods provided for in the\u00a0Act<\/i>.<\/p>\n<\/div>\n<\/blockquote>\n

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[<\/a>32]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0There is little case-law citing\u00a0s. 16(1)<\/span>(b), but one case supports this interpretation,\u00a0Pet Valu Canada Inc. v. Rodger<\/i><\/a>,\u00a0<\/i>2018 ONSC 3353<\/a>. In that case, Pet Valu Canada Inc. (\u201cPet Valu\u201d) and 1250264 Ontario Inc. (\u201c125\u201d) were embroiled in a class action proceeding that resulted in Pet Valu being awarded over $1.7 million in costs against 125, the representative plaintiff. 125 did not pay any of the costs and Pet Valu brought an action against 125\u2019s sole shareholder, Mr. Rodger, for payment of the cost orders. Mr. Rodger argued that Pet Valu\u2019s claims were statute barred, but the court unequivocally dismissed this argument because (1) as per\u00a0s. 16(1)<\/span>(b) there is no limitation in respect of a proceeding to enforce an order of a court, and (2) the action against Mr. Rodger (as opposed to 125) fell within the requisite time-frame. Of course,\u00a0Pet Valu Canada Inc.<\/i>\u00a0is more straightforward because the costs were determined and Pet Valu was simply seeking to have payment enforced, unlike the present case. That being said, both Lofchik J. and Harper J. ordered that the costs were to be reserved, and this order was ultimately not dealt with nor enforced.<\/p>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

In Craven v. Osidacz, the plaintiff asked the court to fix costs for a motion heard in 2010.\u00a0 The defendant objected based on an expired limitation period.\u00a0 The Superior Court held that no limitation period applies to a request to fix costs pursuant to s. 16(1)(b) of the Limitations Act because the plaintiff was seeking … Continue reading Ontario: No limitation period applies to a request to fix costs<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[202,629,382],"class_list":["post-1198","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-claim","tag-costs","tag-ontario-act-s-161b"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1198","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1198"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1198\/revisions"}],"predecessor-version":[{"id":1200,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1198\/revisions\/1200"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1198"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1198"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1198"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}