Month: October 2015

Ontario: Possible removal of limitation periods for sexual assault

Ontario is moving to abolish the limitation period for civil claims based on sexual assault and, in certain cases, non-sexual assault.

Tracy MacCharles, the Minister Responsible for Women’s Issues, introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) for first reading on October 27, 2015.  It was accepted for further debate.

The act would repeal all existing provisions in the Limitations Act relating to sexual assault (primarily section 10), and add the following to section 16, which lists proceedings that have no limitation period:

Clause 16 (1) (h) of the Act is repealed and the following substituted:

  (h)  a proceeding based on a sexual assault;

(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and a person who committed, contributed to, consented to or acquiesced in the misconduct:

           (i)  the other person had charge of the person with the claim,

          (ii)  the other person was in a position of trust or authority in relation to the person with the claim,

         (iii)  the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and a person who committed, contributed to, consented to or acquiesced in the assault:

           (i)  they had an intimate relationship,

          (ii)  the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

What’s most interesting, at least at this preliminary stage, is section 16(1)(h)(2).  The category of people in an intimate relationship that involves financial, emotional, physical, or other dependence is very broad.  Unless “dependence” is given a narrow meaning, it’s a category that could in theory include every romantic relationship.

You can follow the bill’s progress here.

 The Toronto Star published an article describing what the government intends the legislation to accomplish.

 

Ontario: the limitation of mortgage enforcement

Curiously, posts about the Real Property Limitations Act receive the most views on Under the Limit.  My guess is that this reflects the murkiness of the Act more than people’s interest in it.  The Act is Part I of the former Limitations Act, renamed, but otherwise unchanged from its antiquated and impermeable glory.  When the Ontario limitations regime was being reformed, a complete review of limitations was too time-consuming, and so review of the real property limitation periods was abandoned to avoid delaying the other reforms.  Should you be interested, the legislative history is detailed here at paragraphs 27-33.

In the spirit of catering to my market, I present the decision in 552439 Ontario Limited v. Forbes Building Material Limited for its summary of the section 23(1) limitation period for mortgage enforcement:

Real Property Limitations Act

−        Paragraph 23(1) of the Real Property Limitations Act provides for a ten-year limitation period for the enforcement of a mortgage.  It reads as follows:

 

23(1)  “4.  No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given.”

−        It is the nature of the mortgage which will determine when the ten-year period is triggered.  The limitation cannot pass before the mortgagee has any right to enforce.  The limitation runs from the earliest time at which repayment can be required.

 

−        While there are exceptions, on a demand mortgage, the cause of action accrues upon execution of the mortgage.

 

–  Mortgage Insurance Co. of Canada v. Grant 2009 ONCA 655 (CanLII), [2009] O.J. No. 3769

–  Alter v. Csontos [2004] O.J. No. 1590

–  Cioccio v. Cioccio [2005] O.J. No. 1182

 

−        If the terms of the mortgage provide for payment upon the happening of a specific contingency, then the cause of action arises upon the happening of the contingency.  Thus, the ten-year statutory limitation does not run until the contingency is satisfied.

 

–  Re Gould Ex Parte Garvey 1940 CanLII 89 (ON CA), [1940] O.R. 250 (Ont. C.A.)

–  Canada Mortgage and Housing Corp. v. 447136 British Columbia Ltd. [2014] B.C.J. No. 497

 

Ontario: amending a pleaded date of discovery (you can do it)

Here’s a novel limitations issue.  A plaintiff intends to plead that he discovered his claim within the limitation period, but inadvertently pleads that he discovered it on an earlier date so that the claim is statute-barred.  Is the plaintiff entitled to amend the Statement of Claim to plead the correct date, assuming there’s no noncompensable prejudice to the defendant, or is he in effect amending to add a statute-barred claim?

Master Pope held in Islam v. Tadin that it’s just a regular amendment, and the defendant who doesn’t consent to it wrongly seeks advantage from another lawyer’s slip (i.e., a jerk).

The plaintiff’s Statement of Claim in Islam pleaded that he discovered his claim against the defendants in June 2011.  This meant that the limitation period expired in June 2013 and before he issued the Statement of Claim.

The defendants’ pleaded a limitations defence.  Immediately after service of the Statement of Defence, the plaintiff advised defence counsel that the date of discovery pleaded in the Statement of Claim was a factual error.  The plaintiff served a proposed amended Statement of Claim, but the defendants refused their consent to the amendment.

The defendants’ position was that the plaintiff wasn’t entitled to amend his pleading to bring the claim within the limitation period.  Just as the expiry of a limitation period gives rise to a presumption of prejudice, an amendment that makes a statute-barred claim timely gives rise to the same presumption of prejudice.  The expiry of the presumptive limitation period in section 5(2) of the Limitations Act gave rise to a further presumption of prejudice.

If there was any logic to these arguments, it’s hard to tell from the decision.  One senses that Master Pope wasn’t impressed with them, noting with what I imagine was some irritation that “a great deal of material was filed and time spent on the defendants’ submissions”.  In any event, Master Pope rejected them.

The plaintiff was not seeking to add claim beyond the limitation period, or even a claim at all.   The issue of the expired limitation period arose when the plaintiff served the Statement of Claim, not because of the proposed amendments.  The amendment did not engage section 5(2) at all.  The presumptive limitation period wasn’t at issue, but when the plaintiff pleaded he had subjectively discovered the claim.

Master Pope also took note of the circumstances of the motion. Plaintiff’s counsel immediately sought consent for the amendment.  The plaintiff filed an uncontested affidavit stating that the date of discovery pleaded in the Statement of Claim was unintentional and incorrect.  In her view, the motion “was unnecessary given the mandatory wording of rule 26.01 and the fact that there was no case law to support the defendants’ position.  She awarded substantial indemnity costs against the defendant.

Ontario: Discovery doesn’t require knowledge of liability

It’s a settled principle of discoverability that knowledge of liability isn’t necessary to commence the limitation period.  We now have a succinct statement of this principle from the Court of Appeal in Lochner v. Toronto:

[7]         The fact that Mr. Lochner does not know whether the defendants are culpable or liable for the disclosure does not prevent the limitation period from running. Knowledge of liability on the part of the injured person is not part of discoverability for the purposes of the running of the limitation period.  It is the lawsuit itself which is the process by which liability for an act is determined.

 

Ontario: time not suspended by a litigation guardian’s conflict of interest

The basic limitation period doesn’t run when the claimant is a minor or incapable person, except when the claimant is represented by a litigation guardian (see sections 6, 7, and 8 of the Limitations Act).

If the litigation guardian discovers that she has a conflict of interest, she must take steps to have a new litigation guardian appointed.  The conflict of interest will not suspend the running of the limitation period.

Per Justice Sweeny in Socha v. Peninsula Towing & Recovery:

 

[24]        The conflict of interest which is said to arise as a result of being named a defendant to a counterclaim cannot absolve a litigation guardian of his or her responsibilities to a minor. The conflict of interest may be seen as an indication that the litigation guardian has an“interest adverse” to the minor (see Murray v. Children’s Centre Thunder Bay & Murray, 2010 ONSC 845 (CanLII), at para. 25). However, the existence of a counter-claim or the potential liability of a parent has not precluded a parent from representing a minor as a next friend (the precursor to a litigation guardian) as was the case in Beckerson and Beckerson v. Dougherty, 1953 CanLII 129 (ON SC), [1953] O.R. 303.

[25]        In my view, a litigation guardian is not relieved of his or her duties to the minor or incapable person because he or she finds that his or her interest may be adverse. If that situation does arise, the litigation guardian should take steps to have a new litigation guardian appointed. The conflict should not have the effect of suspending the running of the limitation period.