{"id":686,"date":"2018-03-02T19:35:41","date_gmt":"2018-03-02T23:35:41","guid":{"rendered":"http:\/\/limitations.ca\/?p=686"},"modified":"2018-03-02T19:48:00","modified_gmt":"2018-03-02T23:48:00","slug":"ontario-limitations-act-applies-to-federal-entities","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=686","title":{"rendered":"Ontario: Limitations Act applies to Federal entities"},"content":{"rendered":"

In Amir-Afzal v. ICC<\/em><\/a>, the applicant sought an order under s. 253<\/a> of the Canada Not-For-Profit Corporation Act<\/em><\/a> declaring a by-law of the Immigration Consultants of Canada Regulatory Counsel (“ICC”) oppressive.\u00a0 The ICC raised a limitations defence.\u00a0 The applicant argued that the Limitations Act did not apply to the proceeding on the basis of inter-jurisdictional immunity:<\/p>\n

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[<\/a>31]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Before the Court was asked to determine whether the provisions of the Limitations Act applied to the specific facts in this application, the Applicant took the position that the Limitations Act does not apply in law to an application under\u00a0section 253<\/a>\u00a0of the\u00a0Act<\/a>\u00a0because the\u00a0Act<\/a>\u00a0is legislation enacted by the federal government to regulate corporation with national objects, and the provincial Limitations Act operates in conflict with the\u00a0Act<\/a>.\u00a0 Specifically, the Applicant argued that the inter-jurisdictional immunity doctrine prevents the Limitations Act – as provincial legislation of general application – from regulating entities that fall within matters exclusively assigned to the federal government.<\/p>\n<\/blockquote>\n

Justice Diamond rejected this argument in a well-reasoned decision:<\/p>\n

\n

[37]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Turning to the\u00a0Act<\/a>\u00a0itself, there is no explicit or implicit limitation period contained therein relating to the right to bring an oppression remedy application under\u00a0section 253<\/a>.\u00a0 In argument, it was pointed out that there are other types of limitation periods within the\u00a0Act<\/a>\u00a0such as the following:<\/p>\n\n\n\n\n\n\n
Section<\/strong><\/td>\nLimitation<\/strong><\/td>\n<\/tr>\n
145(5)<\/td>\nAn action to enforce the liability of a director for any payments contrary to the\u00a0Act<\/a>\u00a0may not be commenced after two years from the date of the resolution authorizing the payment.<\/td>\n<\/tr>\n
146(3)<\/td>\nAn action against a director for an employee\u2019s wages may not be commenced after two years of the director ceasing to hold the position of director.<\/td>\n<\/tr>\n
263(2)<\/td>\nNo prosecution for an offence under the\u00a0Act<\/a>\u00a0may be instituted later than two years after a time when the subject matter of the complaint arose.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[38]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Applicant argues that by prescribing the above limitations within the\u00a0Act<\/a>, and leaving the oppression remedy section silent on the issue of the limitation periods, the federal government explicitly or implicitly chose not to impose any time limit upon commencing oppression remedy actions under\u00a0section 253<\/a>\u00a0of the\u00a0Act<\/a>.\u00a0 In my view, this is a far too simplistic approach to the issue, as the net result of the Applicant\u2019s argument would be that there is no limitation period upon the right to bring an oppression remedy action under\u00a0section 253<\/a>.\u00a0 A closer look at the test for inter-jurisdictional immunity must thus be undertaken.<\/p>\n

[39]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Does the Limitations Act trench into key aspects of a federal undertaking, namely not-for-profit corporations?\u00a0 In my view, it does not.\u00a0 Even if it did, the Limitations Act certainly does not impair the exercise of the subject federal power, let alone in any serious or significant way.<\/p>\n

[40]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The \u201ccore\u201d of the\u00a0Act<\/a>\u00a0is not tied to the regulation of rights and obligation of corporation members.\u00a0 The Applicant\u2019s right to pursue a statutory remedy under the\u00a0Act<\/a>\u00a0against ICC is not an essential part of the law governing not-for-profit corporations.\u00a0 The purpose of the\u00a0Act<\/a>\u00a0is to allow the incorporation of, or continuance of bodies corporate as, corporations without share capital for the purpose of carrying on legal activities throughout Canada.\u00a0 The Applicant has taken a far too narrow view of the\u00a0Act<\/a>\u00a0in order to render its application to the lowest, individual\/member level.\u00a0 The Limitations Act does not, directly or indirectly, regulate any issues under federal jurisdiction.<\/p>\n

[41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0If anything, the application of the Limitations Act to\u00a0section 253<\/a>\u00a0of the\u00a0Act<\/a>\u00a0creates a defence for non-for-profit corporations that it otherwise would not have under the\u00a0Act<\/a>\u00a0itself.\u00a0 How can providing a not-for-profit corporation with a defence amount to an impairment?\u00a0 In my view, and in furtherance of the administration of justice in this province, the Ontario legislature can determine the time limits within which Ontario courts can consider legal proceedings even if it regulates the procedure applicable to a cause of action under the\u00a0Act<\/a>.<\/p>\n

[42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Finally, to the extent that the Applicant advanced a paramountcy argument in support of his position, the Limitations Act does not frustrate the purpose of the\u00a0Act<\/a>\u00a0in any way.\u00a0 As such, I do not find the presence of any operational conflict between the provisions of the\u00a0Act<\/a>\u00a0and the Limitations Act.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In Amir-Afzal v. ICC, the applicant sought an order under s. 253 of the Canada Not-For-Profit Corporation Act declaring a by-law of the Immigration Consultants of Canada Regulatory Counsel (“ICC”) oppressive.\u00a0 The ICC raised a limitations defence.\u00a0 The applicant argued that the Limitations Act did not apply to the proceeding on the basis of inter-jurisdictional … Continue reading Ontario: Limitations Act applies to Federal entities<\/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":[414,188,413,24],"class_list":["post-686","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-canada-not-for-profit-corporation-act","tag-clever-but-futile-arguments","tag-inter-jurisdictional-immunity","tag-ontario-act"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/686","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=686"}],"version-history":[{"count":3,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/686\/revisions"}],"predecessor-version":[{"id":689,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/686\/revisions\/689"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=686"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=686"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=686"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}