{"id":787,"date":"2018-06-19T15:36:08","date_gmt":"2018-06-19T19:36:08","guid":{"rendered":"http:\/\/limitations.ca\/?p=787"},"modified":"2018-06-19T15:36:17","modified_gmt":"2018-06-19T19:36:17","slug":"ontario-the-impact-of-partial-payment-on-the-limitation-of-debt-claims","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=787","title":{"rendered":"Ontario: the impact of partial payment on the limitation of debt claims"},"content":{"rendered":"

Hamilton and Son Roofing Inc. v. Markham (City) <\/em><\/a>provides an example of a partial payment operating to restart the limitation period for a debt:<\/p>\n

[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In any event, the Notice of Action was not issued until June 14, 2016, more than two years after the June 10, 2014 email was received.<\/p>\n

[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The final issue is whether the payment of the deficiency holdback on May 6, 2015, was an acknowledgment of the debt through part payment under the contract, within the meaning of\u00a0s. 13(11)<\/a>\u00a0of the\u00a0Act<\/a>.<\/p>\n

[<\/a>53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The effect of\u00a0s. 13(11)<\/a>\u00a0of the\u00a0Act<\/a>\u00a0was summarized by Perell J. in\u00a0Montcap Financial Corporation v. Schyven<\/i>,\u00a02011 ONSC 4030 (CanLII)<\/span><\/a>, at para. 26<\/span>:<\/p>\n

With each payment, a debtor acknowledges or re-acknowledges his or her liability; partial payment acts as an acknowledgment that will restart the running of the two-year limitation period:\u00a0ABC Lumber Ltd. v. Bodrenok<\/i>,\u00a02010 ONSC 769 (CanLII)<\/span><\/a>,\u00a0<\/span>2010 ONSC 769 (S.C.J.) at para. 39<\/span>;\u00a0Emmott v. Edmonds<\/i>\u00a02010 ONSC 4185 (CanLII)<\/span><\/a>,\u00a0<\/span>2010 ONSC 4185 (S.C.J.)<\/span>;\u00a0Bank of Nova Scotia v. Christie<\/i>,\u00a02008 CanLII 37609 (ON SC)<\/span><\/a>,\u00a0[2008] O.J. No. 2971 (S.C.J.)<\/span>\u00a0at paras. 58-59<\/span>;\u00a0Montreal Trust Co. of Canada v. Vanness Estate,<\/i>\u00a0[2005] O.J. No. 594<\/span><\/span>\u00a0(C.|A.) at para. 2;\u00a0Markham School for Human Development v. Ghods<\/i>\u00a0(2002),\u00a02002 CanLII 62432 (ON SCDC)<\/span><\/a>,\u00a060 O.R. (3d) 624 (Div. Ct.)<\/span><\/span>.<\/p>\n

[<\/a>54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my view, Markham\u2019s payment of the deficiency holdback on May 6, 2015, was a part payment under\u00a0s. 13(11)<\/a>\u00a0of the\u00a0Act<\/a>\u00a0and had the effect of restarting the limitation period.<\/p>\n

[<\/a>55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The three invoices delivered by Hamilton Roofing on April 7, 2014 all related to the same contract: Markham Purchase Order # PD13334. These invoices represented the total contract price of $151,035.80. Markham held back part of the purchase price – $9,000 plus HST \u2013 for deficiencies. When Markham paid this amount on May 6, 2015, it was not making a payment that was unrelated to the invoice at issue; it was making a \u201cpart payment\u201d of the amount originally claimed by Hamilton Roofing. This was not the payment of a different or additional contract. It related to the original contract and invoices, even though payment was made in response to a new invoice for the deficiency hold back amount.<\/p>\n

[<\/a>56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As this part payment occurred within two years of May 28, 2014, it had \u201cthe same effect as the acknowledgment\u201d in\u00a0s. 13(1)<\/a>\u00a0of the\u00a0Act<\/a>, and restarted the running of the two year limitation period as of May 6, 2015. Since the Notice of Action was issued on June 14, 2016, and the Statement of Claim issued on July 13, 2016, the action is not time barred.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Hamilton and Son Roofing Inc. v. Markham (City) provides an example of a partial payment operating to restart the limitation period for a debt: [51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In any event, the Notice of Action was not issued until June 14, 2016, more than two years after the June 10, 2014 email was received. [52]\u00a0\u00a0 \u00a0\u00a0 … Continue reading Ontario: the impact of partial payment on the limitation of debt claims<\/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":[246,481,482,197,479,480],"class_list":["post-787","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-acknowledgments","tag-debts","tag-holdback","tag-ontario-act-s-13","tag-ontario-act-s-1311","tag-partial-payment"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/787","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=787"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/787\/revisions"}],"predecessor-version":[{"id":789,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/787\/revisions\/789"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=787"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=787"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=787"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}