Simon looking earnest in Preveza, Greece
Simon Shields, LLB

Advising Self-Representing
Ontario Litigants
Since 2005

contracts / tenant / small claims / welfare (ontario works) / odsp / human rights / employment / consumer /
collection agencies / criminal injuries compensation / sppa (admin law)
/ line fences / animal cruelty / dogs & cats / wild animal law (all Canada) / war / conditions of guide use

home / about / client testimonials / areas of practice / about self-representation

Your
Self-Representation
Service Options

Simon Shields, LLB




























Limitations - General

Limitations - Foreign Judgments

Enforcement - Foreign Judgments

Independence Plaza 1 Associates, L.L.C. v. Figliolini (Ont CA, 2017)

The main issues in this case are whether a limitation period applies for commencing an Ontario proceeding to enforce a non-Canadian judgment, and if so then when does it commence: ie. at the date of that judgment or the date that appeal proceedings from it are concluded?

The procedure for the enforcement of foreign (non-Canadian) judgments in Ontario courts is that a fresh proceeding is started in the Ontario Court, essentially seeking to prove that the foreign court properly took jurisdiction and that there were no natural justice flaws in the procedures that led to it's issuance [CSA8-Garden Village, LLC v. Dewar (Ont Sup Ct, 2013)]:
[33] Following Beals, the test for recognition and enforcement of foreign money judgments is as follows. First, the party seeking to enforce the foreign judgment must establish that the foreign court took jurisdiction according to Canadian conflict of laws rules, i.e. there must be a “real and substantial connection” between the subject matter of the litigation and the foreign jurisdiction. Second, the judgment must be for a fixed sum of money. Third, the judgment must be final and conclusive. Fourth, the party resisting the foreign judgment bears the burden of establishing any applicable defences, including fraud, public policy and lack of natural justice. See also Bank of Mongolia v. Taskin, 2011 ONSC 6083 (CanLII), [2011] O.J. No. 4572 (Div. Ct.), aff’d 2012 ONCA 220 (CanLII), [2012] O.J. No. 1469; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 S.C.R. 612.
In the present case, on the limitations issue, the court held that a two-year limitation started to run when the appeal proceedings in the foreign court were completed, but also expounded generally on the history and purposes of limitation periods in litigation:
D. ANALYSIS

[17] The correct approach to resolving the two questions raised by this appeal begins and ends with the provisions of the Limitations Act, 2002, which is a comprehensive and exhaustive scheme for dealing with limitation periods: Intact Insurance Co. of Canada v. Lombard General Insurance Co. of Canada, 2015 ONCA 764 (CanLII), 128 O.R. (3d) 658, at paras. 53-56, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 10 and [2016] S.C.C.A. No. 11.

[18] Accordingly, I will begin my analysis by explaining the purpose of statutes of limitation. I will then examine the relevant provisions of the former Ontario Limitations Act, R.S.O. 1990, c. L.15, and their interpretation in the case law. Finally, I will discuss the legislative history of the Limitations Act, 2002 and the relevant provisions of the statute. Against this background, I will address the two questions raised by this appeal.

(1) Discussion

(i) The purposes of statutes of limitation

[19] Limitations statutes reflect public policy about efficiency and fairness in the justice system. There are three broad policy justifications for limitation statutes: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (CanLII), [2013] 1 S.C.R. 623, at paras. 231-234.

[20] First, they promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts: Hare v. Hare (2006), 2006 CanLII 41650 (ON CA), 83 O.R. (3d) 766 (C.A.), at para. 41. They reflect a policy that, after a reasonable time, people should be entitled to put their business and personal pasts behind them and should not be troubled by the possibility of “stale” claims emerging from the woodwork.

[21] Second, they ensure the reliability of evidence. It is inefficient and unfair to try old claims because evidence becomes unreliable with the passage of time. Memories fade, witnesses die and evidence gets lost. After a reasonable time, people should not have to worry about the preservation of evidence: K.M. v. H.M., 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at p. 30.

[22] Third, and related to this, limitation periods promote diligence because they encourage litigants to pursue claims with reasonable dispatch.

[23] Other justifications have been given, including the interest in the efficient use of public resources through the expeditious resolution of disputes and the desirability of adjudicating disputes on the basis of contemporary values and standards: see Graeme Mew, The Law of Limitations, 3d ed. (Toronto, LexisNexis, 2016), at pp. 16-18.

(ii) The former Limitations Act, R.S.O. 1990, c. L.15

[24] Section 45(1)(g) of the former Limitations Act contained a six-year limitation period for an action on a simple contract or debt. A long line of cases held that an action on a foreign judgment was an action on a simple contract debt for limitations purposes and therefore subject to that six-year limitation period: see Lax, at para. 11; Rutledge v. United States Saving & Loan Co. (1906), 37 S.C.R. 546, at p. 547; and Bedell v. Gefaell (No. 1), 1938 CanLII 92 (ON CA), [1938] O.R. 718 (C.A.), at p. 720. This view was based on the fiction of an implied promise by the foreign judgment debtor to pay the amount of the judgment. As Feldman J.A. noted, at para. 13 of Lax, this fiction was necessary because, “unlike a domestic judgment, a foreign judgment cannot be directly enforced [in Ontario] by execution. Rather, an action must be brought to enforce the debt it creates.”

[25] Section 45(1)(c) of the former Limitations Act also contained a twenty-year limitation period on an “action upon a judgment or recognizance.” In Lax, at paras. 20-25, Feldman J.A. confirmed that this provision did not apply to an action on a foreign judgment. It applied to an action brought in order to toll the limitation period to enforce a domestic judgment using the execution procedures set out in r. 60 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[26] The practice of bringing an action on a domestic judgment to toll the limitation period for its enforcement within the province was discussed by the British Columbia Court of Appeal in Young v. Verigin, 2007 BCCA 551 (CanLII), 72 B.C.L.R. (4th) 332, at paras. 4-8. Newbury J.A. observed that in British Columbia, the limitation period for an action on a domestic judgment for the payment of money was reduced from twenty to ten years by the Limitations Act, S.B.C. 1975, c. 37, s. 3(2)(f). That provision was then amended by the Enforcement of Canadian Judgments and Decrees Act, S.B.C. 2005, c. 29, by inserting the word “local” before the word “judgment,” presumably to clarify that the provision did not apply to foreign judgments: see Limitation Act, S.B.C. 2012, c. 13, s. 7(a).

[27] In Lax, this court rejected the suggestion of Cumming J., in obiter, in Girsberger v. Kresz (2000), 2000 CanLII 22329 (ON SC), 47 O.R. (3d) 145 (S.C.), at paras. 30-50, aff’d on other grounds, (2000), 2000 CanLII 22406 (ON SC), 50 O.R. (3d) 157 (C.A.), that the historical classification of foreign judgments as simple contract debts should be abandoned in order to give “full faith and credit” to foreign judgments on the basis of comity, order and fairness. Cumming J.’s suggestion would have subjected foreign judgments to the twenty-year limitation period in s. 45(1)(c) of the former Limitations Act.

(iii) The history of the Limitations Act, 2002

[28] The Limitations Act, 2002 was the culmination of several attempts, beginning in the late 1960s, to reform, consolidate and simplify the law of limitations in Ontario. The history of those attempts was set out by Weiler J.A. in York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., 2007 ONCA 49 (CanLII), 84 O.R. (3d) 414, at paras. 27-30. See also McConnell v. Huxtable, 2013 ONSC 948 (CanLII), 113 O.R. (3d) 727, at paras. 62-73, aff’d, 2014 ONCA 86 (CanLII).

[29] The purpose of the new statute was to replace a complex, obscure and confusing regime of multiple limitation periods with a simple and comprehensive scheme. The new scheme consists of a basic two-year limitation period applicable to most claims, an “ultimate limitation period” of fifteen years and a statutorily-enshrined discoverability principle. It was intended to promote certainty and clarity in the law of limitation periods: see Dilollo Estate (Trustee of) v. I.F. Propco Holdings (Ontario) 2013 ONCA 550 (CanLII), 36 Ltd., 2013 ONCA 81, 117 O.R. (3d) 81, at para. 61.

(iv) The Limitations Act, 2002

[30] The following provisions of the Limitations Act, 2002 are relevant:
Definitions

In this act …

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

Application

(1) This Act applies to claims pursued in court proceedings other than … [not applicable].



Basic Limitation Period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.



No limitation period

16. (1) There is no limitation period in respect of,



(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court;
[31] Because the proceeding on the New Jersey judgment brought by the respondent in this appeal is a “claim pursued in a court proceeding,” it falls within the comprehensive and exhaustive scheme of the statute.

[32] The Limitations Act, 2002 eliminated its predecessor’s twenty-year limitation period for an action “upon a judgment or recognizance.” However, it included a “proceeding to enforce an order of a court or any other order that may be enforced in the same way as an order of a court” in the proceedings for which there is no limitation period under s. 16(1).



Lawyer License #37308N / Website © Simon Shields 2005-2017