Federal: The limitation of actions under s. 31 of the Expropriation Act

In Canada v. Milne, the Federal Court of Appeal held that no limitation period applies to an action under s. 31(1)(a)(i) of the Expropriation Act:

[3]  The central issue before the motion judge was the proper interpretation of subparagraph 31(1)(a)(i) of the Expropriation Act – whether it provides that there is no limitation period, and thus ousts the operation of subsection 39(1) of the Federal Courts Act, or merely establishes a point in time after which an action may be commenced, subject to the limitation period determined in accordance with subsection 39(1) (in this case the limitation period prescribed by the Ontario Act). Paragraph 31(1)(a) of the Expropriation Act reads as follows (underlining added):

31 (1) Subject to section 30, 31 (1) Sous réserve de l’article 30:
(a) a person entitled to compensation in respect of an expropriated interest or right may, a) une personne qui a droit à une indemnité pour un droit ou intérêt exproprié peut:
(i) at any time after the registration of the notice of confirmation, if no offer under section 16 has been accepted by him, and (i) après l’enregistrement de l’avis de confirmation, si elle n’a accepté aucune offre faite en vertu de l’article 16,
(ii) within one year after the acceptance of the offer, in any other case, (ii) dans un délai d’un an à compter de l’acceptation de l’offre, dans tout autre cas,
commence proceedings in the Court by statement of claim for the recovery of the amount of the compensation to which he is then entitled; or engager des procédures devant le tribunal par voie d’exposé de la demande pour le recouvrement du montant de l’indemnité à laquelle elle a alors droit;

[4]  The motion judge applied the “modern approach” to statutory interpretation endorsed by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 1998 CanLII 837 (SCC), 1998 CanLII 837. He read the words used in subparagraph 31(1)(a)(i) – “at any time after” – in their statutory context and in light of the object and purpose of expropriation legislation.

[5]  Applying this approach, he found the words to be clear and unambiguous. He noted the Supreme Court’s holding in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32 at 46, 1997 CanLII 400 (SCC), 1997 CanLII 400, that expropriation legislation (there the Ontario statute) “should be read in a broad and purposive manner in order to comply with the aim of the Act to fully compensate a land owner whose property has been taken,” and observed that if accepted, the Crown’s position could deprive a land owner of compensation. He interpreted the provision as expressly stating that no limitation period applies, so that subsection 39(1) of the Federal Courts Act does not incorporate Ontario limitations legislation by reference. He also took into account the decision of the Alberta Court of Appeal in Calgary (City) v. Lafarge Canada Inc.1995 ABCA 313 (CanLII) at para. 15, 169 A.R. 363, in which the Court gave the same meaning to the phrase “at any time” as it appeared in Alberta expropriation legislation. He therefore determined that the action was not statute-barred.

[6]  In addition, the motion judge considered whether there is a discrepancy between the English text of subparagraph 31(1)(a)(i), which uses the phrase “at any time after,” and the French text, which uses “après.” Relying on dictionary definitions, he concluded that there is no discrepancy: both texts convey the meaning of “whatever time.” He therefore found it unnecessary to apply the rules, set out in R. v. Daoust2004 SCC 6 (CanLII) at paras. 26-31, [2004] 1 S.C.R. 217, that govern the interpretation of bilingual legislation where the two versions are discordant.

[7]  The Crown now appeals to this Court, submitting that the motion judge erred in interpreting subparagraph 31(1)(a)(i) as providing that there is no limitation period, and in failing to interpret it as merely establishing the point after which an action for compensation may be commenced, subject to the limitation period incorporated by subsection 39(1) of the Federal Courts Act. The issue of statutory interpretation raised by the appeal is an issue of law, subject to the correctness standard of appellate review.

[8]  In my view the conclusion of the motion judge was correct, substantially for the reasons that he gave. I will briefly address only one element of his reasons, as well as one aspect of the Crown’s submissions in this Court that represents a change in position from that argued before the motion judge.

Ontario: sometimes issuing a statement of claim doesn’t mean discovery of the claim


Is commencing a proceeding in respect of a claim determinative of the discovery of that claim?  Not always, according to the Court of Appeal in Har Jo Management Services Canada Ltd. V. York (Regional Municipality).

Flood waters flowing from adjacent land, which the respondent municipality had expropriated for a construction project, damaged the appellant’s property.

In 2011, the appellant commenced proceeding before the Ontario Municipal Board claiming damages for injurious affection in respect of the expropriation.

On June 3, 2013, the appellant sent a letter to the respondent stating that its activities on the adjacent land caused the flooding and resulting damage.  The respondent denied causing the flooding on June 28, 2013.

The appellant commenced an action two years form the respondent’s denial.  The respondent pleaded a limitations defence and move for summary judgment .

The Statement of Claim tracked the language of the appellant’s claim to the respondent.  The Motion Judge found that the appellant knew of his claim on the day he issued it.

Not so, held the Court of Appeal.  The Expropriations Act provides for damages for injurious affection and gives the OMB exclusive jurisdiction to award such damages.  If the flooding damage was caused by the respondent’s construction, the Superior Court would have no jurisdiction to hear the claim.

The appellant’s evidence explained that, to the extent the damage from the flood properly formed part of a claim for damages for injurious affection under the Expropriations Act, it would be part of the appellant’s existing OMB claim.  The action was merely “out of an abundance of caution” in case it turned out that the flooding was not caused by the respondent’s construction, but by some other factors that did not meet the definition of injurious affection.

There was no suggestion that something other than the construction might have caused the flooding until the respondent’s June 28, 2013 letter.  It was on this date that that appellant knew that a proceeding was an appropriate remedy for a claim against the respondent and not a proceeding before the OMB.

The curious aspect of this decision is that issuing a statement of claim (or even drafting the statement of claim) was not determinative of the discovery of the claim it pleads.  There is authority for the principle that it is logically inconsistent for a plaintiff to commence an action before discovering a claim.  See also s. 14(3) of the Limitations Act.

It’s certainly hard to understand how a court could find that a statement of claim does not indicate discovery of the claim pleaded in it, or that objective discovery can occur after subjective discovery.

Here, the Court seems to have avoided this problem by finding that the appellant’s evidence demonstrated that the statement of claim did not indicate subjective discovery of the claim.  This is likely to happen very rarely, and I expect that this decision will be an outlier.

I think the limitations defence might have been avoided if the statement of claim (which I haven’t seen) had pleaded explicitly that it advanced a claim only in regards of the damage that was not within the OMB’s exclusive jurisdiction.