Limitations Act - No Limitation Period [s.16]. CIBC v Houlahan
In CIBC v Houlahan (Div Ct, 2011) the Divisional Court engaged in a useful examination of student loan history to determine whether the relevant loans fell into the 'no limitation' category under s.16(1)(k) of the Limitations Act:
2. Grounds of appeal . Independence Plaza 1 Associates, L.L.C. v. Figliolini
(a) guaranteed loans, risk loans, risk-shared loans and ordinary loans
 Historically, the Canada Student Loans Program (“CSLP”), first introduced in 1964, has been administered under two Federal statutes: the Canada Student Loans Act, R.S.C. 1985, c. S-23 (“CSL Act”); and, the Canada Student Financial Assistance Act, S.C. 1994, c. 28 (“CSFA Act”).
 The CSLP was revamped in 1994 with the passage of the CSFA Act which, as I understand the matter, replaced the CSL Act for new student loans.
 Loans under the CSL Act were “guaranteed loans,” meaning that the Government of Canada was liable when borrowers defaulted. Under the CSFA Act, student loans became “risk-shared loans.” Thus, as of 1995, the Government of Canada ceased guaranteeing new student loans. All of the loans to Houlahan, whatever their type, post-dated 1995.
 Sacco was clear in her testimony that the loans to Houlahan were “risk loans,” for which CIBC was fully responsible, yet neither of the above federal statutes says anything about “risk loans”; although, as I have said, the CSFA Act does address something called “risk-shared loans.”
 What is the distinction, if any, between “risk loans” and “risk-shared loans”? At first grammatical glance, the notion of “risk-shared loans” seems to imply something less onerous for the lender than “risk loans.” However, there is no evidence either way.
 I am unable to reconcile Sacco’s use of the term “risk loans” with the absence of those words from the CSFA Act. Consequently, it seems to me that I cannot infer that the loans were made under the CSFA Act. More evidence is needed.
 If the loans were not made under the CSFA Act (and bearing in mind that they could not have been made under the CSL Act because it was not in force for 1995 student loans), then, in so far as s. 16(1)(k) of the Limitations Act, 2002 is concerned, that leaves only the Ministry of Training, Colleges and Universities Act, R.S.O. 1990, c. M.19 – a provincial statute – and Sacco testified that the loans to Houlahan came under the federal student-loans program. As well, that statute is silent as to both “risk loans” and “risk-shared loans.”
 The issue is further clouded by the fact that the documents filed in evidence by CIBC contain references to the CSL Act, legislation that is irrelevant to the loans to Houlahan. No one at trial mentioned the CSFA Act (even though many of the exhibits contain the acronym “CSFAA,” which likely means the CSFA Act).
 As I have already pointed out more than once, Houlahan argued at trial and in this court that the loans were not made under the CSLP but, instead, were simply ordinary loans between him and CIBC.
 It is clear that the loans were not guaranteed loans, but beyond that, there is insufficient evidence to identify the nature of the loans.
(b) first ground of appeal
 The first ground of appeal is that the trial judge erred in concluding that the loans to Houlahan were made under the CSL Act. That appears to have been the conclusion reached by the trial judge, and he certainly referred to the CSL Act in his decision (as did trial counsel for CIBC in her closing argument). With the CSL Act having been replaced by the CSFA Act at the time of the loans to Houlahan, the trial judge was led into error.
(c) second ground of appeal
 The second ground of appeal is awkwardly worded in the Notice of Appeal and so I will quote it again, in part. Houlahan contends that the trial judge erred in disregarding “the admission of [Sacco] . . . that the amount claimed was the sole risk of the CIBC’s and that there was no reimbursement or recovery from any other source and that, therefore, the amount claimed was not a student loan.” Although the loans were “risk loans,” according to Sacco, not “guaranteed loans,” it is incorrect to say that she described them as not being student loans. Indeed, the opposite is the case. However, that begs the question whether the loans were “risk loans,” “risk-shared loans” or ordinary loans.
(d) third ground of appeal
 The validity of the third ground of appeal (that the trial judge erred in holding that the action was not statute barred) cannot be determined until the type or nature of the loans is identified.
(e) new ground
 Houlahan raised a fourth ground of appeal, one that was neither pleaded nor argued at trial or included in the Notice of Appeal. It was mentioned for the first time in the factum filed by Houlahan on the appeal.
 The contention is that the Claim was issued and prosecuted by Accounts Recovery Corporation, as representatives of the CIBC, and that the former is a corporation operating under the Collection Agencies Act, R.R.O. 1990, Reg. 74, which contains certain pre-litigation requirements for a collection agency to follow: (1) Section 21(1) states that “[n]o collection agency . . . shall demand payment . . . of a debt from a debtor unless the collection agency . . . has sent the debtor, by ordinary mail, a private written notice setting out the following information . . .”; (2) Section 23(3)(a) provides that “[n]o collection agency . . . shall commence a legal proceeding for the collection of a debt in the name of the creditor, unless the collection agency . . . has the written authority of the creditor to do so . . .” Houlahan argues that he was not given “written notification or proof of authorization to commence litigation proceedings . . .” He submits: “[I believe] that Accounts Recovery Corporation acted without proper authority to do so.”
 This fourth ground, to be argued, would require fresh evidence to be adduced. The “traditional test for the admission of fresh evidence on appeal” was summarized in Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 (CanLII),  1 S.C.R. 44 at para. 6:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . .
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
 The requirement of due diligence in (1) carries with it an obligation to explain why the fresh evidence was not adduced at trial. No such explanation was proffered. For that reason alone, I am unwilling to admit the evidence necessary for Houlahan to argue a breach of the Collection Agencies Act.
 Finally, the fact that the Defence pleads “such further and other defence(s) as may arise or this court may permit” does not eliminate the need for compliance with the criteria in Public School Boards’ Assn. of Alberta.
 At trial, counsel for CIBC argued that the loans to Houlahan were made under the CSL Act and the trial judge accepted that argument. The CSL Act is not applicable. Trial counsel did not say a word about the CSFA Act and, understandably, neither did the trial judge. This case was argued and decided under the wrong statute.
 I am convinced that insufficient evidence was adduced at trial concerning the nature or type of loans to Houlahan. Sacco testified that they were “risk loans,” but the governing legislation (which I take to be the CSFA Act) makes no mention of such loans. Additionally, I am unable to draw inferences from the evidence that would allow me to safely identify the type of loans in issue. I do not think that I should assume Sacco intended to say “risk-shared loans” instead of “risk loans” and that CIBC’s trial counsel intended to argue the CSFA Act instead of the CSL Act, and go on to infer the facts necessary to affirm the judgment. While it is true that the words “Canada Student Loans Program” appear in all 16 of the documentary exhibits, that still leaves an erroneous and incomplete evidentiary record for the purposes of identifying the statutory basis for the loans and the type of loans, all of which is a precondition to determining the applicable limitation period. Should I order a new trial? Yes.
 A “court to which an appeal is taken may order a new trial”: see the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(b).
 A new trial shall not be directed “unless some substantial wrong or miscarriage of justice has occurred”: see the Courts of Justice Act, s. 134(6).
 “Where some substantial wrong or miscarriage of justice has occurred but it affects only part of an order or decision . . . a new trial may be ordered in respect of only that part . . .”: see the Courts of Justice Act, s. 134(7).
In Independence Plaza 1 Associates, L.L.C. v. Figliolini (Ont CA, 2017) the Court of Appeal discusses Limitation Act s.16 (no limitation period) when considering the application of the Act to a 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. ...