{"id":376,"date":"2016-02-07T16:47:54","date_gmt":"2016-02-07T20:47:54","guid":{"rendered":"http:\/\/limitations.ca\/?p=376"},"modified":"2016-02-07T16:47:54","modified_gmt":"2016-02-07T20:47:54","slug":"ontario-an-overview-of-s-13-jurisprudence","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=376","title":{"rendered":"Ontario: an overview of s. 13 jurisprudence"},"content":{"rendered":"

In Deloitte & Touche LLP v. Kuiper<\/a><\/em>, Justice Hood provides a helpful summary of the jurisprudence considering section 13<\/a> of the Limitations Act<\/a>.<\/p>\n

Section 13\u00a0deems the date of an acknowledgement of liability in respect of certain types of claims to be the\u00a0date from which the presumptive limitation period begins to run:<\/p>\n

Acknowledgments<\/p>\n

13. (1)<\/span><\/b> If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.<\/p>\n<\/blockquote>\n

This is the summary:<\/p>\n

\n

[14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In Middleton v. Aboutown Enterprises Inc.<\/i>, [2008] O.J. No. 3608 (S.C.J.)<\/span><\/span> there was a promisory note that had $412,500 outstanding on it.\u00a0 Prior to any claim being made, the defendants sent a letter and an unsigned release to the plaintiff purporting to offer $50,000 in exchange for an executed release. Justice Lederer stated at para. 11 of Middleton<\/i> that in order to be an acknowledgment for the purposes of the Act<\/a>, the acknowledgment must, at a minimum, have to demonstrate and confirm the amount of the debt that remained owing.\u00a0 Justice Lederer\u2019s decision has been followed in a number of other decisions.<\/p>\n

[15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In Montcap Financial Corp. v. Schyven<\/i>, 2011 ONSC 4030 (CanLII)<\/span><\/a> at para. 27<\/span>, and in Skuy v. Greennough<\/i>Corporation<\/i>, 2012 ONSC 6998 (CanLII)<\/span><\/a> at para. 56<\/span>, Justice Perell in both instances referred to Middleton<\/i> and stated that an acknowledgment for the purposes of the Act<\/a><\/i> of an indebtedness for a liquidated sum \u201cmust, at a minimum, confirm and concede the amount that remains owing\u201d.\u00a0 In West York International Inc. v. Importanne Marketing Inc.<\/i>, 2012 ONSC 6476 (CanLII)<\/span><\/a><\/span>, Justice DiTomaso at paragraph 92 referenced Middleton<\/i> and Montcap<\/i>, and repeated Justice Perell\u2019s wording that the acknowledgment \u201cmust, at a minimum, confirm and concede the amount that remains owing\u201d.<\/p>\n

[16]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Justice Lederer\u2019s decision in Middleton<\/i> was appealed.\u00a0 While the appeal was dismissed in a four paragraph endorsement, see:\u00a0 Middleton v. Aboutown Enterprises Inc., <\/i>2009 ONCA 466 (CanLII)<\/span><\/a><\/span>, the Court stated in its endorsement that it did not accept the statement that to stand as an acknowledgment, the letter and Release would, at a minimum, have to demonstrate and confirm the amount of the debt that remained owing.\u00a0 It would seem that the appeal decision was not drawn to the attention of either Justices Perell or DiTomaso based upon their adoption of Justice Lederer\u2019s wording in their decisions.<\/p>\n

[17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Unfortunately, the Court of Appeal does not say what part of Justice Lederer\u2019s statement it did not accept.\u00a0 However, the Court went on to say at para. 1 that with respect to the alleged acknowledgment documentation, it \u201cdid not constitute a clear and unequivocal acknowledgment of the debt claimed, with a proposal to satisfy it, as opposed to a mere offer to settle a claim, without acknowledging that $412,500, or indeed any amount, remained owing in respect of the promissory note\u201d.<\/p>\n

[18]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Using the wording of the Court of Appeal, I cannot find that the letter herein of October 24, 2011, was a clear and unequivocal acknowledgment of the debt claimed.\u00a0 Nor does the letter contain a proposal to satisfy the debt.\u00a0 There is no acknowledgment of $143,620.84, or any amount owing in respect of the invoices.\u00a0 If anything, it was a letter of complaint addressed to the plaintiff complaining that the invoices were not in accordance with the initial estimate and that they lacked detail.\u00a0 The defendants also raised some tax issues which they said were not drawn to their attention by the plaintiff.\u00a0 Accordingly, I am unable to find that the defendants acknowledged the debt within the meaning of s. 13<\/a> of the Act<\/a>, <\/i>thereby extending the commencement of the limitation period.<\/p>\n<\/blockquote>\n

If you’ll excuse a little pedantry, there’s one issue with the decision that bears noting. \u00a0Justice Hood states\u00a0that “Section 13<\/a> of the Act<\/a> overrides s. 4<\/a> of the Act<\/a>“. \u00a0Not so. Section 4\u00a0provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. \u00a0Section 13\u00a0has no impact on section 4. \u00a0Rather, section 13 relates to section 5(2), which contains the presumption that a person discovers her claim on the day the act or omission on which the claim is based took place. \u00a0Section 13 deems this day to be day\u00a0the\u00a0acknowledgement of\u00a0liability was made.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In Deloitte & Touche LLP v. Kuiper, Justice Hood provides a helpful summary of the jurisprudence considering section 13 of the Limitations Act. Section 13\u00a0deems the date of an acknowledgement of liability in respect of certain types of claims to be the\u00a0date from which the presumptive limitation period begins to run: Acknowledgments 13. (1) If … Continue reading Ontario: an overview of s. 13 jurisprudence<\/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":[197,198],"class_list":["post-376","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-ontario-act-s-13","tag-please-excuse-my-pedantry"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/376","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=376"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/376\/revisions"}],"predecessor-version":[{"id":377,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/376\/revisions\/377"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=376"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=376"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=376"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}