{"id":576,"date":"2017-06-25T16:47:17","date_gmt":"2017-06-25T20:47:17","guid":{"rendered":"http:\/\/limitations.ca\/?p=576"},"modified":"2017-06-25T16:48:19","modified_gmt":"2017-06-25T20:48:19","slug":"ontario-claims-for-the-return-of-condo-deposits-subject-to-ten-year-limitation-period","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=576","title":{"rendered":"Ontario: claims for the return of condo deposits subject to ten year limitation period"},"content":{"rendered":"

The Court of Appeal has held that a\u00a0claim for the return of deposits advanced toward the purchase of a condo unit is subject to the ten year limitation period in s. 4 of the Real Property Limitations Act<\/a>.<\/p>\n

Justice Epstein’s analysis in Harvey v. Talon International Inc.<\/a><\/em> is refreshingly methodical and lucid.\u00a0 It begins with the governing principle of statutory interpretation:<\/p>\n

[<\/a>40]\u00a0\u00a0 \u00a0\u00a0 This is a matter of statutory interpretation. Statutory interpretation is governed by the approach described in Elmer Driedger,Construction of Statutes<\/em>, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd<\/em>.<\/i>, 1998 CanLII 837 (SCC)<\/a>, [1998] 1 S.C.R. 27<\/span>, at para. 21<\/span>:<\/p>\n

Today there is only one principle or approach, namely, the words of an Act<\/a> are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act<\/a>, the object of the Act<\/a>, and the intention of Parliament.<\/p>\n

Principles Applied<\/h3>\n

[<\/a>41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Section 4<\/a> of the RPLA<\/a><\/em> provides as follows:<\/p>\n

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 When those aspects of s. 4<\/a> of the RPLA<\/a><\/em> that do not apply to this case are removed, it provides that:<\/p>\n

No person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it<\/p>\n

[<\/a>43]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Thus, there are 3 requirements in s. 4<\/a>: an \u201caction\u201d, to \u201crecover\u201d and what must be recovered is \u201cland\u201d.<\/p>\n

[<\/a>44]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 An action is defined in s. 1<\/a> of the RPLA<\/a><\/em> to include \u201cany civil proceeding\u201d.<\/p>\n

[<\/a>45]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u201cRecover\u201d is defined in legal dictionaries as \u201cgaining through a judgment or order\u201d. This was the definition adopted for the use of \u201crecover\u201d in s. 4<\/a> in McConnell v. Huxtable<\/em>, 2014 ONCA 86<\/span> (CanLII)<\/a>, 118 O.R. (3d) 561<\/span>, at paras. 16-20<\/span>, specifically, at para. 17, where this Court noted that the English Court of Appeal has held that the expression \u201cto recover any land\u201d in comparable legislation \u201cis not limited to obtaining possession of the land, nor does it mean to regain something that the plaintiff had and lost. Rather, \u201crecover\u201d means to \u2018obtain any land by judgment of the Court\u2019\u201d<\/p>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 I agree with the application judge\u2019s approach on this point. This is clearly an action to recover.<\/p>\n

[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The remaining question is whether what Ms. Yim seeks to recover \u2013 her deposit \u2013 is \u201cland\u201d. The definition of land in s. 1<\/a> of the RPLA<\/a><\/em> is as follows:<\/p>\n

\u201cland\u201d includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency;<\/p>\n

[<\/a>48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 In my view, the application judge was also correct in concluding that an application for the return of the deposit was an action for the recovery of \u201cland\u201d; specifically the recovery of \u201cmoney to be laid out in the purchase of land\u201d.<\/p>\n

[…]<\/p>\n

[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 In support of this conclusion, I note that several cases have clarified the relationship between claims for damages and claims covered by the RPLA<\/a><\/em>. The Supreme Court in Canson Enterprises Ltd. v. Boughton & Co.<\/em>, 1991 CanLII 52 (SCC)<\/a>, [1991] 3 S.C.R. 534<\/span><\/span>, defined damages as \u201ca monetary payment for the invasion of a right at common law\u201d. In Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc.<\/em>, 2015 ONSC 1067 (CanLII)<\/span><\/a><\/span>, the plaintiff sought damages based off the defendant\u2019s failure to meet its obligations under a Shared Services Agreement. Perell J., beginning at para. 49, noted that the fact that real property is incidentally involved in an action does not necessarily mean that the action is governed by the RPLA<\/a><\/em>. Among the cases he cited was Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co.<\/em>, 2012 ONCA 845 (CanLII)<\/span><\/a><\/span>. In that case, this Court made the following comment, at para. 7:<\/p>\n

Finally, we do not think that the [RPLA<\/a><\/i>] applies to the case as framed by the appellant. In its Statement of Claim, the appellant frames its action as one for damages flowing from the respondents’ negligence, breach of contract, conflict of interest, and breach of duty of care, fiduciary duty and statutory duty. None of these relates to the categories of actions encompassed by the [RPLA<\/a><\/i>].<\/p>\n

[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Thus, had Ms. Yim\u2019s claim been one primarily seeking damages, for example breach of contract, her application would be statute-barred. This would be true even if the claim for damages incidentally related to real property, specifically the condominium that was the subject of her APS. Claims for damages do not fit within the definition of \u201cland\u201d in the RPLA<\/a><\/em>.<\/i><\/p>\n

[<\/a>53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 However, Ms. Yim is not seeking damages. She advances a specific claim under a provision in the Act<\/a>, a provision that only allows for the return of her deposit and interest, not damages. The Tax Court defined a deposit in Casa Blanca Homes Ltd. v. R.<\/em>, 2013 TCC 338 (CanLII)<\/span><\/a><\/span>, as \u201ca pool of money retained until such time as it is applied in partial payment or forfeited\u201d. As noted by the Alberta Court of Appeal in Lozcal Holdings Ltd. v. Brassos Development Ltd<\/em>. <\/i>(1980), 1980 ABCA 72 (CanLII)<\/a>, 111 D.L.R. (3d) 598<\/span><\/span>, \u201ca genuine deposit ordinarily has nothing to do with damages, except that credit must be given for the amount of the deposit in calculating damages\u201d.<\/p>\n

[<\/a>54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 This leads me to the consideration of \u201cmoney to be laid out in the purchase of land\u201d, a phrase on which there is scant jurisprudence. However, in my view an action for the return of a deposit fits comfortably within its plain meaning. Frankly, I struggle to understand what would fit within this phrase if not an action such as this.<\/p>\n

[<\/a>55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 On the basis of the foregoing analysis, I conclude that Ms. Yim\u2019s application is not statute-barred. This is also true of the amendment of her initial application to specifically claim statutory rescission. As her application is covered by s. 4<\/a> of the RPLA<\/a><\/em>, the applicable limitation period is ten years. The application is an action, which is defined as any civil action. She seeks \u201crecovery\u201d, which has been defined as \u201cgaining through a judgment or order\u201d. And the recovery she seeks is of \u201cland\u201d; namely, her deposit, which is money laid out in the purchase of land.<\/p>\n

[<\/a>56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 I would therefore not give effect to this ground of appeal.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The Court of Appeal has held that a\u00a0claim for the return of deposits advanced toward the purchase of a condo unit is subject to the ten year limitation period in s. 4 of the Real Property Limitations Act. Justice Epstein’s analysis in Harvey v. Talon International Inc. is refreshingly methodical and lucid.\u00a0 It begins with … Continue reading Ontario: claims for the return of condo deposits subject to ten year limitation period<\/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":[66,346,43,345,53,267,270],"class_list":["post-576","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-condominiums","tag-deposits","tag-ontario-court-of-appeal","tag-ontario-real-property-limitations-act-s-4","tag-real-property","tag-real-property-limitations-act-s-4","tag-real-property-limitations-is-confusing"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/576","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=576"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/576\/revisions"}],"predecessor-version":[{"id":578,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/576\/revisions\/578"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=576"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=576"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=576"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}