Month: September 2017

Ontario: presumed prejudice from an expired limitation period

Justice Kurke’s decision in Trudeau v. Cavanagh has a helpful summary the principles of the presumption of prejudice arising from an expired limitation period:

[24]           A presumption of prejudice arises if the amendment is sought after the expiration of a relevant limitation period.  This presumption will be determinative unless the moving party can demonstrate, on the facts of the case, that there exist special circumstances to rebut the presumption that the responding party will suffer prejudice from the loss of a remedy as a result of the expiration of a limitation period: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3 (CanLII), 88 O.R. (3d) 401 (C.A.), at paras. 17, 22, 28; Churly v. Budnick, 1997 CanLII 12260 (ON SC), [1997] O.J. No. 2909 (Master’s Ct.), at paras. 31, 34.

[25]           On the other hand, a court need not give effect to prejudice that may occur to a responding party that has arisen because of the responding party’s own failure to do something it reasonably could or ought to have done.  Thus, where prejudice is said to arise from expiration of a limitation period, if the responding party could or should have taken steps itself within the time frame of the limitation period, but failed to do so, it cannot complain of prejudice if the moving party seeks amendment after the limitation period has run.  Such “self-created prejudice” displaces the presumption: 2054509 Ontario Ltd. v. Corrent, [2012] O.J. No. 5810 (Master’s Ct.), at paras. 35-37; Desjardins v. Mooney, [2001] O.J. No. 697 (Sup. Ct.), at para 21; and cf. Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), 46 O.R. (3d) 780 (C.A.), at para. 15.

 

Ontario: Succession Law Reform Act limitations principles

Justice Lofchik’s decision in Habberfield v. Sciamonte et al. has a good summary of limitation principles under Part V of the Succession Law Reform Act:

[19]      The Applicant proposes that the application (for support), if permitted, would proceed under Part V of the Succession Law Reform Act (“SLRA”).  Section 57 ofSLRA defines a “dependent” as including a “spouse”, which includes a common law spouse (i.e. two persons who are not married to each other and have cohabited continuously for a period of not less than three years) to whom the Deceased was providing support or was under a legal obligation to provide support immediately before his death

[20]      Section 58 provides as follows: Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependents or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependents or any of them.

[21]      The limitation period is set out in section 61(1) of the SLRA:

(1)        Limitation Period- Subject to (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.

[22]      The court’s jurisdiction  to grant an extension derives from 61(2) of the SLRA:

(2)       Exception- The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

[23]      The issue on this Application, therefore, is whether it would be, in these circumstances, proper to extend the limitation period.

[24]      The jurisprudence with respect to granting an extension – and Blatchford in particular – sets out the following principles in relation to an extension under section 61(2) of the SLRA:

(a) The Court has the discretion to allow the application to proceed at any time as to any portion of the estate remaining undistributed at the date of the application.

(b) The discretion of the Court under section 61(2) to allow an application to proceed although it is brought after the time limit has expired under theSLRA must be exercised judicially, with considerations of the delay involved, the reasons for the delay, and the extent of prejudice in the Estate’s defence of the claim.

(c) The Court’s discretion to extend the limitation period under section 61(2) is to be exercised in a broad and liberal manner.

(d) In deciding whether to grant the extension, the court must determine whether the situation bears review of whether or not the Deceased madeadequate provision in his Will for the proper maintenance and support of his dependents.

(e) The question is not whether the Deceased has in fact done so, but whether there is a sufficient basis for review.  This requires a consideration of what is equitable (in relation to the “proper” support of dependents as contemplated by the SLRA).

(f)  While delay (including the reason for delay) is a factor to consider, a request for an extension is not grounded solely in “good cause” being shown forthe delay. The discretion to extend or refuse is a question of what is equitable between the parties, in all the circumstances.

(g) In the absence of prejudice to the Estate, equity tends to favour granting an extension:

[…]

[26]      So far as granting an extension of the limitation period is concerned, the legislation was never intended to allow a court to rewrite the will of a testator in discharging its difficult task of correcting a breach of morality on a testator’s part.  The court must not, except in plain and definite cases, restrain a man’s right to dispose of his estate as he pleases.  But equally, it is fair to say that the legislation has by and large received a very liberal interpretation.  The attitude of the courts has been one of great flexibility.  Every case must of course be decided upon its own facts and circumstances.  Under the authority of the SLRA the court can and should take a look at the intentions of the testator who may have overlooked a legitimate interest and needs of a dependent.

Blatchford v. Gardiner supra at para 23

R. v. Barr et al. [1972] 2 W.W.R.A. 346

[27]      The discretion under s. 61(2) should be exercised judicially in a broad and liberal manner mandated by the statutory use of “may” in both s. 58(1) and 61(2) of theAct as well as the use of the term “proper”.  The word “proper” according to Black’s Law Dictionary, 6th Edition, means “fit, suitable, appropriate, adapted, correct”.  These words incorporate the concept of reasonableness which includes a determination of whether the testator acted as a morally responsible person in the circumstances.

[28]      In deciding whether to grant an extension the court must determine whether the situation bears review of whether or not the testator made adequate provision in his will for the proper maintenance and support of the dependents.

Blatchford, supra, para’s 22 and 23

The judge is thus given a  discretion to be exercised on the principle of promoting justice between those interested in the estate. It is clear that hemust refuse an application if the delay in applying would work an injustice. Further than that it would seem that he must find that justice, insofar as the principle of the Act defines the kind of justice that the Legislature had in mind, requires that the application should be heard.

Blatchford v. Gardiner, 1999 CanLII 15091 (ON SC), [1999] O.J. No. 3748 (S.C.J.)

Re Assaf, 2007 CanLII 50869 (ON SC), 2007 CanLII 50869 (S.C.J.)

Weigand v. Weigand Estate [2016] O.J. No. 5096 (S.C.J.)

In this case, Justice Lofchik granted the application:

[29]      The bulk of the estate (some $2 million in assets – the two properties) remains undistributed.  In fact, it cannot be distributed until such time as the Applicant dies, moves or desires to sell the properties or either of them.  Accordingly, while there has been a delay in bringing the application, I find there is no prejudice to the estate (or its beneficiaries) occasioned by the delay.  The situation is the same now as it was prior to the expiry of the limitation period.

[30]      I accept the Applicant’s position that this is a “situation which bears review of whether or not the deceased made adequate provision in his will for the proper maintenance and support of his dependents”, namely the Applicant.

[31]      I deem it proper in that it is suitable and correct, based upon all the circumstances to allow the application to be made now as to any portion of the estate remaining undistributed at the time of the application.  The application is not frivolous or vexatious and the case has been made to exercise my discretion to allow the application to proceed.  Order to go that the Applicant be allowed to proceed with this Application.

Ontario: the running of the notice period for libel

Section 5(1) of the Libel and Slander Act provides the notice requirement for an action in libel in a newspaper:

No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

In John v. Ballingall, the Court reiterated that the day on which a plaintiff must give notice under s. 5(1) and bring an action under s. 6 begins to run when the libel comes to the knowledge of the person defamed.

 

Ontario: Briefly, the principles of s. 5(1)(a)(iv)

In Velgakis v. Servinis, the Court of Appeal conveniently reduced the s. 5(1)(a)(iv) discovery principles in Presidential to two points:

[6]         In Presidential MSH, at paras. 17-20, this court clarified certain principles governing cases such as the one before us on the issue of discoverability:

1.      A legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

2.       The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature. The plaintiff and defendant must have engaged in good faith efforts to right the wrong it caused.

Furthering the interested of brevity, in Tracy v. Iran (Information and Security),  the Court reduced the purpose of that provision to a sentence 2017 ONCA 549:

[79]      The purpose of the appropriateness criterion in s. 5(1)(iv) of the Limitations Act, 2002 is to deter needless litigation: Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325 (CanLII), at para. 17. Given that a stay of the respondents’ proceedings on the U.S. judgments would be inevitable if they were brought at common law, it would have been fruitless to commence them before 2012 when the JVTA and SIA carved out an exception to Iran’s immunity. They were therefore not appropriate or discoverable before 2012.

 

 

Ontario: limitation defences and r. 21

In Salewski v. Lalonde, the Court of Appeal casts doubt on whether there is any circumstance where r. 21.01(1)(a) is appropriate for determining a limitations issue except where pleadings have closed and the facts are undisputed:

[45]      However, the basic limitation period established by the Limitations Act, 2002 is now premised on the discoverability rule. The discoverability rule raises issues of mixed fact and law: Longo v. MacLaren Art Centre, 2014 ONCA 526 (CanLII), 323 O.A.C. 246, at para. 38. We therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear the facts are undisputed. Absent such circumstances, we are sceptical that any proposed limitation defence under the Act will involve “a question of law raised by a pleading” as required under rule 21.01(1)(a).

Ontario: RPLA applies to all claims to obtain land

After a prolonged summer break, Under the Limit returns!

In Waterstone Properties v. Caledon (Town), the Court of Appeal reminds us that s. 4 of the Real Property Limitations Act applies to any court proceeding to obtain land by court judgment:

[32]      The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost.  Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust:  Hartman Estate v. Hartfam Holdings Ltd., 2006 CanLII 266 (ON CA), [2006] O.J. No. 69, at para. 56; McConnell v. Huxtable, 2014 ONCA 86 (CanLII), 118 O.R. (3d) 561, at paras. 38-39.

As to what it means to obtain land by court judgment, some direction comes from Justice Faieta’s decision in Wilfert v. McCallum from June 2017.  The prospect that a financial benefit may accrue to a plaintiff/judgment creditor resulting from a declaration to set aside a transfer of land under the Fraudulent Conveyances Act does not result in the the plaintiff obtaining land by court judgment.

[26]           With the greatest of respect for the views expressed by my colleague in Conde v. Ripley, 2015 ONSC 3342 (CanLII) at para. 48, the prospect that a financial benefit may accrue to a plaintiff/judgment creditor resulting from a declaration to set aside the transfer of land under the FCA does not result in the plaintiff “obtaining land by judgment of the Court”.  Accordingly, an action to set aside a fraudulent conveyance of land is not an action to recover land.