Limitations Act - Foreign Judgments. Independence Plaza 1 Associates, L.L.C. v. Figliolini
In Independence Plaza 1 Associates, L.L.C. v. Figliolini (Ont CA, 2017) the Court of Appeal considered how the Limitations Act applies to the situation of enforcing a foreign judgment.
For background, 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)]:
 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),  O.J. No. 4572 (Div. Ct.), aff’d 2012 ONCA 220 (CanLII),  O.J. No. 1469; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII),  2 S.C.R. 612.The case states:
(2) Does s. 16(1)(b) apply to a proceeding on a foreign judgment?
 I turn now to the first question raised in this appeal – whether there is any limitation period applicable to a proceeding on a foreign judgment. Section 16(1) of the Limitations Act, 2002, which had no counterpart in the former statute, created a class of claims that are subject to no limitation period, rather than the “basic” two-year limitation period or the “ultimate” fifteen-year limitation period.
 The matters covered by s. 16(1) are, in summary, as follows:
• claims for declaratory relief, if no consequential relief is sought;
• claims 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;
• claims for support or maintenance in family law matters;
• proceedings to enforce a domestic arbitration award;
• proceedings under the Civil Remedies Act, 2001, S.O. 2001, c. 28;
• claims by debtors or creditors in possession of collateral;
• claims in relation to sexual assault, sexual misconduct in relation to minors and assault on minors; and
• certain proceedings by the Crown or other agencies in relation to claims by the Crown or in relation to government programs, loans or grants.
 The interpretation of s. 16(1)(b) has been the subject of conflicting decisions of the Ontario Superior Court of Justice. In Commission de la Construction du Quebec v. Access Rigging Services Inc., 2010 ONSC 5897, 104 O.R. (3d) 313, McLean J. dealt with an application to enforce a 2005 Quebec judgment in Ontario. The application was brought in 2010. Quebec is not a reciprocating party to the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 (“REJA”). Hence, the basic two-year limitation period applied unless the claim fell within s. 16(1)(b) of the Limitations Act, 2002. The judgment debtor sought to dismiss the application as time-barred.
 The judgment creditor, relying on Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC),  3 S.C.R. 1077, and Girsberger argued that comity supported a liberal interpretation of s. 16(1)(b) as being applicable to foreign judgments.
 McLean J. rejected this argument, finding that the two-year limitation period applied. Relying on Lax, he held that nothing in the wording of “order of a court” in s. 16(1)(b) shows an intention to change the common law position that a foreign judgment cannot be directly enforced in Ontario and that it must be converted into a domestic judgment that is enforceable in Ontario. In previous iterations of the act, the analogous term “judgment” referred to domestic judgments that could be enforced in Ontario without bringing a proceeding on the judgment.
 Moreover, McLean J. held that to interpret s. 16(1)(b) as applicable to proceedings on foreign judgments would be inconsistent with REJA, which contains a six-year limitation period for the registration of judgments of the courts of other provinces and territories, except Quebec. He found that the judgment creditor’s argument would lead to the incongruous result that there was no limitation period applicable to proceedings on Quebec judgments in Ontario, but proceedings on the judgments of other provinces would have a six-year limitation period.
 McLean J. observed that the purpose of the Limitations Act, 2002 was to simplify the previously complex scheme of limitations and said it would have been simple enough to include foreign judgments in s. 16(1)(b), had that been the legislature’s intention. It was not the court’s responsibility to make a change that the legislature had not.
 In PT ATPK Resources TBK (Indonesia) v. Diversified Energy and Resources Corp., 2013 ONSC 5913, Newbould J. questioned the reasoning in Access Rigging. He suggested that knowledge of a foreign judgment did not fit well with the language of knowledge of “injury loss or damage” in the discoverability provision in s. 5 of the Limitations Act, 2002. In his view, it made more sense to treat a claim for the enforcement of a foreign judgment as having no limitation period under s. 16(1)(b), to which the discoverability provision does not apply. This, he said, would also be more consistent with the principles of comity expressed by the Supreme Court of Canada in Beals v. Saldhana, 2003 SCC 72,  3 S.C.R. 416, and Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52,  2 S.C.R. 612.
 In S.A. Horeca Financial Services v. Light, 2014 ONSC 4551, Murray J. disagreed with Access Rigging and preferred the reasoning in PT ATPK. He also referred to Beals, noting the importance of comity. In contrast to the view taken in Access Rigging, he suggested that the legislature’s failure to exclude foreign judgments from s. 16(1)(b) was significant.
 It falls to this court, as a matter of first impression, to interpret whether s. 16(1)(b) applies to a proceeding on a foreign judgment. The words of s. 16(1)(b) are to be read in light of the language of the provision as a whole, their context within the statutory scheme, and the purposes of the Limitations Act, 2002: see R. v. Hajivasilis, 2013 ONCA 27, 114 O.R. (3d) 337, at para. 23; and Ayr Farmers Mutual Insurance Co. v. Wright, 2016 ONCA 789, at paras. 26, 28-29, 31-32.
 First, therefore, I consider the language of s. 16(1)(b) as a whole.
 Phrases serving parallel functions and associated by the disjunction “or” in a statutory provision influence each other’s meaning. The parallelism “invites the reader to look for a common feature among the terms” to resolve any ambiguities: Ruth Sullivan, The Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 230. The Supreme Court has stated that “a term or an expression should not be interpreted without taking the surrounding terms into account” in order to identify a “common thread”: Opitz v. Wrzesnewskyj, 2012 SCC 55,  3 S.C.R. 76, at paras. 40, 43.
 In my view, the term “order of a court” in s. 16(1)(b) takes its meaning, in part, from the parallel phrase immediately associated with it – namely, “any other order that may be enforced in the same way as an order of a court” (emphasis added). I observe that a similar parallel phrase is found in s. 19(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that “[a] certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such” (emphasis added).
 The “common feature” or “common thread” linking these parallelisms is the concept of enforceability. Section 16(1)(b) of the Limitations Act, 2002 applies to court orders and to other orders, such as those of persons exercising a statutory power of decision, that are enforceable in the same way as a court order.
 This common thread within s. 16(1)(b) does not extend to foreign judgments. The domestic judgments contemplated by the provision are directly enforceable in Ontario by means of the execution procedures in r. 60 of the Rules of Civil Procedure, including writs of seizure and sale, garnishment, or the appointment of a receiver: Lax, at para. 21. By contrast, like an order of a foreign arbitral tribunal, the debt obligation created by a foreign judgment cannot be directly enforced in Ontario in the absence of reciprocal enforcement legislation such as REJA or REJUKA. A proceeding in Ontario must be brought first: see Lax at paras. 11-13; Yugraneft at para. 45; Chevron Corp. v. Yaiguaje, 2015 SCC 42,  3 S.C.R. 69, at para. 43. That proceeding may result in a judgment or order of the Ontario court. The resulting order may be enforced as an order of the court, with no applicable limitation period.
 Thus, the judgment of a foreign court is one step removed from being an order of a court for the purpose of s. 16(1)(b) of the Limitations Act, 2002. It is not on the same level as an order of an Ontario court or any other order, such as an order of an Ontario statutory decision maker, which may be enforced as an order of a domestic court. This was adverted to by Feldman J.A. in Lax, at para. 31, in explaining why she did not agree with the approach taken by Cumming J. in Girsberger:
[A]s long as only domestic judgments can be enforced by execution and the other methods discussed above, and therefore foreign judgments must be transformed into domestic judgments or registered before they are enforceable as domestic judgments, there is not parity of treatment. There are good reasons for giving different treatment for limitations purposes to the enforcement in Ontario of a judgment of an Ontario court, on the one hand, and a judgment of a foreign court, on the other hand. The principle of territorial sovereignty means that the judgment of a court has effect only inside the territory in which the court is located and cannot be enforced outside its borders: Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws, 2d ed. (Toronto: Irwin Law, 2016), at p. 162. The extraterritorial enforcement of a court’s order is not a legitimate exercise of state power: see Tolofson v. Jensen, 1994 CanLII 44 (SCC),  3 S.C.R. 1022, at p. 1052; Club Resorts Ltd. v. Van Breda, 2012 SCC 17,  1 S.C.R. 572, at para. 31; Chevron, at paras. 47-48; and Endean v. British Columbia, 2016 SCC 42, 401 D.L.R. (4th) 577, at para. 45.
 Thus, while a domestic judgment can be enforced as of right in Ontario, it is necessary to bring a proceeding on a foreign judgment. If that proceeding is successful, it will give rise to an Ontario judgment which can be directly enforced in the province.
 Furthermore, a judgment creditor who brings an Ontario proceeding on a foreign judgment must show that the foreign court had jurisdiction and that the judgment is final and for the payment of money (or that it would be appropriate for the Ontario court to recognize it as enforceable within the province even if it is interlocutory or non-monetary): see Pro Swing; Chevron; and Cavell Insurance Co. (Re) (2006), 2006 CanLII 16529 (ON CA), 80 O.R. (3d) 500 (C.A.), at para. 41.
 The foreign judgment debtor is entitled to raise defences to the proceeding, such as fraud, denial of natural justice and public policy: see Beals. These defences “distinguish foreign judgments from local judgments, against which the sole recourse is an appeal”: Janet Walker & Jean-Gabriel Castel, Canadian Conflict of Laws, loose-leaf (Rel. 54-3/2016 Pub.5911), 6th ed. (Toronto: LexisNexis, 2005), at para. 14.3.
 I conclude that the language of s. 16(1)(b) of the Limitations Act, 2002 suggests that the term “order of a court” refers to an order of a domestic court.
 Second, I consider the statutory context of s. 16(1)(b) of the Limitations Act, 2002.
 Section 16(1)(b) also takes its meaning from the surrounding provisions of s. 16. When statutory provisions are grouped together, the legislature is presumed to have drafted each with the others in mind: Inland Revenue Commissioners v. Hinchy,  A.C. 748 (H.L.), at p. 766. They tend to illuminate each other’s meaning because they “share a single idea”: Ruth Sullivan, Statutory Interpretation, 3d ed. (Toronto, Irwin Law, 2016), at p. 175.
 The other provisions grouped together in s. 16 pertain to claims such as family law support awards, sexual assault claims and government claims that are considered so important that, for one policy reason or another, they should have no limitation period at all. For example, the policy reason underlying the exemption for sexual assault claims “is grounded in the likelihood that the dynamic of the relationship will impede the autonomy of the victim”: Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53, at para. 40, aff’d, 2012 ONCA 230.
 In this context, it is important to identify the policy reason for including claims “to enforce an order of a court” in the subset of claims that have no limitation period under s. 16. In my view, the reason is that such claims have already passed a limitations hurdle under Ontario law – a court order can only be obtained if the underlying cause of action giving rise to it was not time-barred.
 This was the policy reason suggested by the British Columbia Law Reform Commission, in its 1974 Report on Limitations, for the argument that no limitation period should apply to claims to enforce domestic court orders. As quoted by Newbury J.A. in Young v. Verigin, at para. 7, the commission wrote:
Furthermore, the successful plaintiff cannot be said to have slept on his rights. He has taken action, and as a consequence recovered judgment. It might be argued, with considerable justification, that no limitation period whatsoever should exist with respect to the enforcement of judgments. It may seem unfair that the plaintiff who has been put to the trouble and expense of obtaining a judgment to enforce a right or obligation should face a further limitation period with respect to the exercise of his rights under the judgment. Why should he not be free to pursue his rights under the judgment at his leisure if he so chooses? It follows that the term “order of a court” in s. 16(1)(b) should be interpreted as referring to an order of a domestic court only. A proceeding on a foreign judgment has not passed any Ontario limitations hurdle. If the action on the foreign judgment is successful, it results in an Ontario judgment, which is subject to no limitation period. But that can only be justified if the underlying cause of action based on the foreign judgment has already passed a limitations hurdle in Ontario.
 I find support for this conclusion in the Report of the Ontario Law Reform Commission on the Limitation of Actions (Toronto: Department of the Attorney General, 1969), at pp.50-51. The report stated, at p. 49, that there was good reason to apply the longer twenty-year limitation period in the former Limitations Act to actions on domestic judgments because, in terms later adopted by the British Columbia report, “the successful plaintiff cannot be said to have slept on his rights. He has taken action and, as a consequence, recovered judgment.” However, the report nevertheless recommended that foreign judgments should remain subject to the six-year limitation period governing debts in the former Limitations Act, notwithstanding the artificiality of treating them as simple contract debts.
 It is also noteworthy that several provinces have subjected foreign judgment proceedings to a special limitation period that is distinct from the one that applies to proceedings on domestic judgments. British Columbia’s Limitation Act subjects “local” judgment proceedings to a ten year limitation period in s. 7, but it deals with “extraprovincial judgments” separately. Section 2(1)(l) of Manitoba’s The Limitation of Actions Act, C.C.S.M., c L150, treats “Canadian judgments” differently from other judgments. Newfoundland sets a six-year limitation period on an action “to enforce a foreign judgment” and a ten-year period on actions to enforce a judgment of a court in the province: see Limitations Act, S.N.L. 1995, c. L-16.1, s. 6(1)(g). And Prince Edward Island’s Statute of Limitations, R.S.P.E.I. 1988, c. S-7, s. 2(1)(f) distinguishes between “extraprovincial judgments” and other judgments.
 The statutory context therefore suggests that the language of s. 16(1)(b) of the Limitations Act, 2002 is confined to orders of domestic courts.
 Third, and finally, I consider s. 16(1)(b) in light of the purposes of limitations statutes.
 It would be contrary to the purposes of limitations statutes to interpret s. 16(1)(b) as exempting foreign judgments from any limitation period. If it were always possible to bring a proceeding on a foreign judgment in Ontario without time limitation, no matter when and where it was obtained, the debtor would be indefinitely exposed to the prospect of defending such proceedings in Ontario. As was pointed out in the Ontario Law Reform Commission’s report at p. 50, problems associated with the preservation and reliability of evidence are especially pronounced for foreign judgment debtors. This militates in favour of having some limitation period apply to proceedings on foreign judgments. As well, exempting such proceedings from a limitation period would not encourage diligence or reasonable dispatch on the part of the foreign judgment creditor, who, unlike domestic judgment creditors, has not already surmounted an Ontario limitations hurdle.
 Before concluding, I would remark that, despite their undoubted importance, the principles of comity expressed in Morguard, Beals, Chevron and Cavell do not require the absence of any limitation period for a proceeding on a foreign judgment. Nor do they supersede the equally important policy rationales for limitations statutes. It is one thing to remove barriers to the extraterritorial recognition of foreign judgments. But it is quite another to grant them more generous status than any other debt obligation or to give them the same status as a domestic judgment for limitations purposes, thereby circumventing the very reasons for limitation periods.
 I conclude, therefore, that s. 16(1)(b) of the Limitations Act, 2002 does not apply to proceedings on foreign judgments, and the applicable limitation period for the respondent’s proceeding on the New Jersey judgment at issue in this appeal is the basic two-year period in s. 4. The result is that time begins to run when the claim is “discovered” within the meaning of s. 5. I turn to that question next.
(3) When does time begin to run on a proceeding on a foreign judgment in Ontario?
 The application judge found that the limitation period for the respondent to commence his proceeding on the New Jersey judgment ran from the date the New Jersey appeal was dismissed. As I have noted, he found that this was consistent with REJUKA and with the Supreme Court’s approach to the enforcement of foreign arbitral awards in Yugraneft.
 The appellant submits that this is inconsistent with previous authorities, including the decision of Henry J. in Four Embarcadero and, more recently, the decision of Glustein J. in Continental Casualty. Those cases stand for the proposition that a proceeding on a foreign judgment may be commenced in Ontario even if the judgment is not final, in the sense that the time to appeal it in the foreign jurisdiction has not expired or it is actually under appeal.
 In my view, those cases are of no assistance in resolving the issue of when time begins to run in a proceeding on a foreign judgment. The question of a judgment’s finality is relevant not to statutory limitation periods to commence a proceeding on a foreign judgment, but to the conditions that a foreign judgment creditor must satisfy to succeed on the proceeding: see Cavell, at paras. 41-43.
 The test under the Limitations Act, 2002 is not whether the judgment is “final”; it is when the claim is discovered, a fact that is ascertained through the application of s. 5(1), aided by the presumption in s. 5(2).
 I acknowledge the point made by Newbould J. in PT ATPK that, in the context of s. 5(1) of the Limitations Act, 2002, a proceeding on a foreign judgment does not fall particularly neatly into the definition of “claim” as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” However, the statute was meant to be comprehensive and exhaustive. Section 2(1) provides that it applies to “claims pursued in court proceedings,” and s. 4 provides that the basic two-year limitation period applies “unless this Act provides otherwise.”
 The words “injury, loss or damage” in s. 5(1) can reasonably refer to the debt obligation created by a foreign judgment and owed by the foreign judgment debtor to the creditor. The “act or omission” can reasonably refer to the debtor’s failure to discharge the obligation once it became final. Viewed in this light, s. 5(1) can reasonably be viewed as applying to a proceeding on a foreign judgment.
 I note, in this regard, that the discoverability provision in Alberta’s Limitations Act differs from the Ontario provision in that it contains a definition of “injury” that includes the non-performance of an obligation. Rothstein J. adverted to this definition in Yugraneft, at para. 50. Although Newbould J.’s comment in PT ATPK is a fair one, Justice Rothstein’s reference lends weight to the observation that fitting a foreign judgment within the definition of “injury” in s. 5(1) of the Limitations Act, 2002 is not as strained as it might seem.
 Section 5(1) provides that a claim is discovered on the earlier of: (a) the day on which the claimant first knew, among other things, “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)”. The test in s. 5(1)(a) has been referred to as a “subjective test” because it looks to the claimant’s actual knowledge, and the test in s.5(1)(b) as a “modified objective” test because it looks to what a reasonable person with the abilities and in the circumstances of the claimant ought to have known: see Ferrera v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONCA 851, 113 O.R. (3d) 401, at para. 70; and Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, at para. 35.
 In 407 ETR Concession Co. v. Day, 2016 ONCA 709, at para. 48, Laskin J.A. explained that “one reason why the legislature added ‘appropriate means’ [in s. 5(1)(a)] as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation.” “Appropriate” means “legally appropriate.” For example, a tactical choice to delay commencement of a proceeding to engage in settlement discussions after a loss, injury or damage is known does not make the proceeding inappropriate: Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 24.
 Appropriateness must be assessed on the facts of each case, and case law applying s. 5(1)(a)(iv) is of limited assistance: Brown v. Baum, 2016 ONCA 325, 348 O.A.C. 251, at para. 41. However, it is noteworthy that courts have held that a proceeding is not legally appropriate until other mechanisms for resolving a dispute, such as a statutory remedial process, have been exhausted: see 407 ETR, at para. 40; U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103, at paras. 22-25; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621, at paras. 52-57, aff’d, 2015 ONCA 847; and Mew, at pp. 95-96.
 In the usual case, it will not be legally appropriate to commence a legal proceeding on a foreign judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted. The foreign appeal process has the potential to resolve the dispute between the parties. If the judgment is overturned, the debt obligation underlying the judgment creditor’s proceeding on the foreign judgment disappears.
 This approach is consistent with the decision of the Alberta Court of Appeal in Laasch v. Turenne, 2012 ABCA 32, 522 A.R. 168. In that case, the court determined that the statutory limitation period to commence a proceeding on a Montana judgment began to run even while the creditor sought to register the judgment under Alberta’s reciprocal enforcement legislation. The existence of the reciprocal enforcement statute did not displace the common law process for a proceeding on a foreign judgment. Therefore, the proceeding was “warranted” within the meaning of the discoverability provision of Alberta’s Limitations Act even while the creditor sought registration.
 To regard a claim based on the foreign judgment as discoverable and appropriate only when all appeals have been exhausted is also consistent with the observations of Rothstein J. in Yugraneft. He stated, at para. 57, that the limitation period to enforce a foreign arbitral judgment under Alberta’s Limitations Act starts to run when the time to appeal the judgment has expired or, where an appeal is taken, the date of the appeal decision.
 Finally, as the application judge noted, this approach avoids the risk of multiplicity of proceedings by not requiring the judgment creditor to commence a proceeding on a foreign judgment in Ontario before all proceedings in the foreign jurisdiction have run their course. It furthers the purpose of s. 5(1)(a)(iv) of the Limitations Act, 2002 by deterring the unnecessary litigation that may result from commencing an Ontario proceeding on a foreign judgment that is subsequently overturned.
 The foregoing approach to the discoverability of a foreign judgment does not preclude a foreign judgment creditor seeking an interim Mareva injunction to freeze exigible assets of the judgment debtor in Ontario before a proceeding on the foreign judgment is commenced in the province and the foreign appeal process is still running its course: see Chitel v. Rothbart (1983), 1982 CanLII 1956 (ON CA), 39 O.R. (2d) 513 (C.A.); and Aetna Financial Services v. Feigelman, 1985 CanLII 55 (SCC),  1 S.C.R. 2. Nor does the approach preclude a foreign judgment debtor obtaining a stay of execution of an Ontario judgment that the creditor obtained after successfully suing on a foreign judgment that is still under appeal: see DSLangdale Two LCC v. Diasytek (Canada) Inc.,  O.T.C. 1133 (S.C.), at paras. 13-16.
 In a particular case, a claim based on a foreign judgment may not be discovered under s. 5 of the Limitations Act, 2002 until such time as the judgment creditor knew or ought to have known that the judgment debtor had exigible assets in Ontario and could be served with process: see Yugraneft at paras. 49. 58, 61. As s. 5(1)(b) makes clear, the discoverability assessment, including the appropriateness criterion, must take account of the factual context and the plaintiff’s actual circumstances, and I reiterate that each case must be decided on its own facts: see 407 ETR, at paras. 34, 45-46.
 In the present case, I conclude that the respondent’s claim based on the New Jersey judgment was discoverable on July 17, 2014, the date the appeal was dismissed in New Jersey. The respondent would not have reasonably known that a proceeding in Ontario would be an appropriate means to seek to remedy its loss until that date. Thus, the limitation period for the respondent to commence its proceeding on the New Jersey judgment began on that date. The respondent brought the proceeding on May 1, 2015, within the applicable two-year limitation period. Hence, the proceeding was not time-barred.