{"id":998,"date":"2020-04-06T21:08:39","date_gmt":"2020-04-07T01:08:39","guid":{"rendered":"http:\/\/limitations.ca\/?p=998"},"modified":"2020-04-06T21:08:39","modified_gmt":"2020-04-07T01:08:39","slug":"ontario-the-principles-of-s-13-acknowledgment","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=998","title":{"rendered":"Ontario: the principles of s. 13 acknowledgment"},"content":{"rendered":"

University Plumbing v. Solstice Two Limited<\/em><\/a> contains a reasonably uncommon discussion of s. 13 acknowledgment<\/a> principles:<\/p>\n

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[<\/a>15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The last payment made by Solstice to the Plaintiff was on September 5, 2012. There is written acknowledgment of the debt in the form of email correspondence by Mr. Chalmers to representatives of the Plaintiff on June 20, 2013, October 9, 2013, April 25, 2014, and August 8, 2014. Mr. Chalmers admits that he sent these communications and that they contained his electronic signature.<\/p>\n

\u00a0[<\/a>16]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0According to\u00a0ss. 13(1)<\/a>,\u00a0(10)<\/a>, and\u00a0(11)<\/a>\u00a0of the\u00a0Limitations Act<\/i>,\u00a02002<\/i><\/a>, SO 2002, c. 24, Sched. B, these part payments and written acknowledgements bring the debt within two years of the commencement of the action. Under s. 13(8) these acknowledgments apply even though they may not contain specific promises to pay (although some of these communications do, in fact, contain such promises to pay the liquidated amount). The Court of Appeal has also confirmed that the acknowledgments do not have to specifically state the amount of the debt owing:\u00a0Middleton v Aboutown Enterprises Inc<\/i>.,\u00a02009, ONCA 466<\/span><\/a>, at para\u00a01<\/a><\/span>; see also\u00a0Back v Gilroy<\/i>,\u00a01977 CanLII 1548<\/span><\/a>, at para\u00a010<\/a>\u00a0(Sask Dist Ct)<\/span>.<\/div>\n
\u00a0[<\/a>17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0This is especially the case where, like here, the actual amount is not a contentious issue:\u00a0Phillips v Rogers<\/i>,\u00a01945 CanLII 500 (AB QB)<\/a>,\u00a0[1945] 2 WWR 53<\/span>, at para\u00a026<\/a><\/span>, citing\u00a0Spencer v Hemmerde<\/i>,\u00a0[1922] 2 AC 507<\/span><\/span>, 518. As stated by the Saskatchewan Court of Queen\u2019s Bench in\u00a0I.D.H. Diamonds NV v Embee Diamond Technologies Inc<\/i>.,\u00a02017 SKQB 79<\/span><\/a>, at para\u00a021<\/a><\/span>, \u201cthe court will look at the circumstances in which it was written, and will construe it in the way in which the writer intended it to be construed by the person to whom it is addressed.\u201d<\/div>\n
\u00a0[<\/a>18]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Defendants make an issue of the fact that the written acknowledgements were digitally transmitted and were not signed by hand. Counsel for the Defendants points out that s. 13(10) of the\u00a0Limitations Act<\/i>\u00a0states that signed written acknowledgments are what is required. However, the case law establishes that the issue in every case will be one of fact:\u00a0Lev v Serebrennikov<\/i>,\u00a02016 ONSC 2093<\/span><\/a>, at para\u00a024<\/a><\/span>.<\/div>\n
\u00a0[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The communications here are virtually identical to those described in\u00a0Fleisher Ridout Partnership Inc. v Tai Foong International Ltd<\/i>.,\u00a02012] OJ No 4229<\/span>, at para\u00a016<\/span><\/span>:<\/div>\n
\u00a0I am of the view that the Emails are something more than a mere acknowledgment of the debt. Firstly, the defendant expresses regret and surprise that the invoices have not been already paid. In fact, not only does he not object or deny payment but he clearly and reservedly indicates that the invoices should have been paid already. Secondly, he agrees to take \u2018action\u2019 to pay them.<\/div>\n

[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As in\u00a0Lev<\/i>, at para\u00a024<\/a>, the \u201cemail[s] can satisfy the requirements of s. 13 of the [Litmitations<\/i>]\u00a0Act<\/a>\u00a0concerning acknowledgment.\u201d Context is everything in these situations. Counsel for the Defendants submits that if a limitation period is to be waived, formality is important to ensure that it was intended by the sender of the communication. Here, however, that is not a particularly contentious issue since the communications are repeated and fully acknowledged. The emails sent by Mr. Chalmers and Mr. Smith all contain digital signatures. Under different circumstances those might not amount to conscious acknowledgment of the debt, but here the two individuals who sent them specifically concede that they were intended to be unequivocal acknowledgments of the debt.<\/p>\n

\u00a0[<\/a>21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Mr. Chalmers and Mr. Smith have admitted in discovery that Solstice repeatedly confirmed liability for the full balance owing. In an email dated September 18, 2015, Mr. Smith specifically stated that the debts remained owing and again reiterated an intent to pay. As already indicated, it is the Defendants\u2019 position that Chalmers and Smith were speaking strictly in their capacities as directors and officers of Solstice, and not of DSD or personally. However, under s. 13(6) of the\u00a0Limitations Act<\/i>, an acknowledgment by one trustee (i.e. Solstice) is an acknowledgment by any other person who is a trustee or later becomes a trustee (i.e. DSD, Chalmers, and Smith). \u201c[D]irectors [who] had knowingly participated in a fraudulent and dishonest breach of trust\u2026were therefore personally liable as constructive trustees\u201d:\u00a0St Mary\u2019s<\/i>, at 620.<\/div>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

University Plumbing v. Solstice Two Limited contains a reasonably uncommon discussion of s. 13 acknowledgment principles: [15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The last payment made by Solstice to the Plaintiff was on September 5, 2012. There is written acknowledgment of the debt in the form of email correspondence by Mr. Chalmers to representatives of the Plaintiff on … Continue reading Ontario: the principles of s. 13 acknowledgment<\/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":[246,197],"class_list":["post-998","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-acknowledgments","tag-ontario-act-s-13"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/998","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=998"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/998\/revisions"}],"predecessor-version":[{"id":999,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/998\/revisions\/999"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=998"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=998"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=998"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}