|
Limitations Act - Meaning of 'Claim'. Lagana v 2324965 Ontario Inc.
In Lagana v 2324965 Ontario Inc. (Div Court, 2023) the Divisional Court considered (and partially allowed) an appeal of an s.253 OBCA application to "enforce his right as a shareholder to receive audited financial statements" (an 'accounting').
In these quotes, the court considers whether such an application is a 'claim' governed by the Limitations Act (in the result it allows that it is):[10] The standard of review is the appellate standard of review described in Housen v. Nikolaisen, 2002 SCC 33: correctness for a question of law. Although for the purposes of this appeal, the parties are content to treat the issues as ones of law, I would characterize the question as one of mixed fact and law, with allegations of an extricable error in law. That extricable question is whether the application judge erred in determining that Mr. Lagana has not advanced a claim, and therefore the Limitations Act does not apply.
[11] At para. 27 of her decision, the application judge held:[27] This application is based on the applicant's statutory entitlement under the OBCA as a shareholder of the Corporation: there is no broader relief sought. I find that the applicant's request for compliance with the OBCA is not a "claim" as defined by the Limitations Act and consequently that the request for audited financial statements prior to 2019 is not statute barred. [12] The appellants submit that the order for audited financial statements must be limited to the previous two years by virtue of s. 4 of the Limitations Act and the jurisprudence which supports a broad understanding of what is meant by a “claim.”
[13] The respondent submits that an application to enforce a corporate responsibility is not a “claim” subject to a two-year limitation period. It is simply an obligation of the corporation, and the shareholder is availing himself of the procedures under the OBCA to enforce that responsibility. Since the financial information ought to have been provided for every year that the respondent was a shareholder, the court ought to be available to enforce that right.
[14] I agree with the appellants that the order should be varied because an application to enforce corporate duties by force of s. 253 of the OBCA in my view fall within the definition of “claim.” Section 253 of the OBCA provides broad powers to remedy non-compliance with its provisions in these terms:253 (1) Where a corporation or any shareholder, director, officer, employee, agent, auditor, trustee, receiver and manager, receiver, or liquidator of a corporation does not comply with this Act, the regulations, articles, by-laws, or a unanimous shareholder agreement, a complainant or a creditor of the corporation may, despite the imposition of any penalty in respect of such non-compliance and in addition to any other right the complainant or creditor has, apply to the court for an order directing the corporation or any person to comply with, or restraining the corporation or any person from acting in breach of, any provisions thereof, and upon such application the court may so order and make any further order it thinks fit. R.S.O. 1990, c. B.16 [15] The Limitations Act, s. 1, defines a claim as a proceeding brought “to remedy an injury, loss or damage that occurred as a result of an act or omission".
[16] As the Court of Appeal for Ontario noted in Packall Packaging Inc. v. Ciszewski, 2016 ONCA 6 (CanLII) at para. 28, “It is a core obligation of a corporation to its shareholders to provide them with an annual report card of the corporation's financial position in the form of audited financial statements.” I conclude that a failure to do so involves a “loss” to the shareholder who is entitled to have this information, irrespective of whether the report card ultimately reveals other losses or damages that are actionable.
[17] The Limitations Act has been described as a "comprehensive approach to the limitation of actions": York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., 2007 ONCA 49 (CanLII), 84 O.R. (3d) 414, [2007] O.J. No. 240 (C.A.), para. 2. I find that the relief provided for within s. 253 of the OBCA fits logically into the framework and understanding of what is meant by a “claim” under the Limitations Act. Section 253 is a statutory proceeding which exists to enforce omissions under the OBCA, including the corporation’s core obligations to its shareholders. There is no statutory exemption under either the Limitations Act or the OBCA from the operation of the basic limitation period.
[18] The presumptive operation of the limitation period to a request for financials was noted in passing by Farley, J. in Labatt Brewing Company Ltd. v Trilon Holdings, 1998 CanLII 14697 (ON SC), 41 O.R. (3d) 384, 72 O.T.C. 223, 81 A.C.W.S. (3d) 443, para. 8, in these terms:How far back must Trilon go in providing Labatt with audited financial statements? If Labatt had been a "continuous" shareholder, then the only restriction would have been the ordinary six-year limitation period which given the timing required here relating to annual meetings would have resulted in audited financials being required to be given Labatt for the fiscal years ending December 31, 1991, onwards. However, Labatt did not become a shareholder until June 1993 and therefore it would not be entitled pursuant to s. 154(3) to audited financials before December 31, 1992. (Emphasis added) [19] The appointment of the auditor under s. 149 (8) of the OBCA only goes to the current year. Mr. Lagana’s request for a retrospective mandatory injunction was different. He asked the court to compel the auditor to opine on the corporation’s old financial statements and then to compel the board of directors to put those statements before the shareholders as ought to have been done at the time.
[20] This part of Mr. Lagana’s application asked the court to enforce compliance with the auditor’s and board’s duties under ss ss. 153 and 154 (1)(c)of the OBCA.
[21] Mr. Lagana applied to the court to grant a remedy because the respondent violated the law in a manner that caused him loss or harm. That is no different in kind than a lawsuit for damages or an injunction generally. It is a claim for relief consequential upon prejudice being suffered by a plaintiff due to the defendant’s breach of the law. That is the heart of his “claim”.
[22] The motion judge focused on the corporation’s duty to appoint an auditor pursuant to s.149 of the OBCA, which she found not to be a claim per se. But the part of the order from which the appeal is taken required audits to be conducted dating back to 2013 and that these results be placed before the shareholders as required by ss. 153 and 154 of the OBCA.
[23] I note that in fairness to the application judge, it is not clear whether she had the benefit of argument explicitly on these points or the observations of Farley J. in Labatt Brewing.
[24] I agree with the findings of the application judge that the applicant/respondent on appeal was not estopped from seeking this information, and that he should have the audited financial statements for the two years prior to the date he brought the application.
[25] However, the application judge erred in determining that a limitation period of two years pursuant to the Limitations Act did not apply to this demand for audited financial statements for several years prior to those two years. Accordingly, the claim for an order to require the appellants to produce audited statements for those years prior to 2020 is statute-barred.
[26] For these reasons, the appeal is allowed to the extent necessary to bring the period for which audited financial statements must be produced in line with the time limit for such a claim as prescribed by the Limitations Act. . Di Filippo v. Bank of Nova Scotia
In Di Filippo v. Bank of Nova Scotia (Ont CA, 2023) the Court of Appeal considers the meaning of a 'claim' for Limitations Act purposes, here where the existence of a new claim within sought pleading amendments would result in them being time-barred:[34] Section 4 of the Limitations Act provides the basic limitation period which is based on the date of discovery of a claim. The section reads: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. [35] Claim is defined in s. 1 as:“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission. [36] Section 5(1)(a) then sets out the criteria for determining when a claim is discovered: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 ... . [37] With respect to criterion (iv)[6], a proceeding would only be appropriate if the circumstances give rise to one or more legally recognized causes of action on which to base the proceeding. The wrong must have a legally recognized remedy. It is only in this sense – that legal recourse must be appropriate to address a loss caused by the proposed defendant’s act or omission – that the term “claim” has any legal specificity.
[38] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, the Supreme Court clarified when a plaintiff discovers that they have a claim. It is when they have knowledge, either actual or constructive, “of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn”: at para. 42. The plausible inference standard means that the plaintiff does not have to be certain that the known facts will give rise to legal liability, but the plaintiff must have knowledge of the material facts that form the basis for the plausible inference of legal liability. . Gordon Dunk Farms Limited v. HFH Inc.
In Gordon Dunk Farms Limited v. HFH Inc. (Ont CA, 2021) the Court of Appeal considered the meaning of 'claim' (here the issue was wrt s.4-5 of the Ontario Limitations Act):[26] The meaning of “claim” in the Act was explained by this court in Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, and confirmed most recently by the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, in respect of the New Brunswick Limitation of Actions Act, S.N.B. 2009, c. L-8.5 (the “N.B. Act”). In Kaynes, the court explained that while the Act no longer refers specifically to a cause of action, instead it sets out universal criteria for the commencement of the limitation period in respect of a claim: at paras. 50-58. A claim is pursued in a court proceeding to obtain a remedy for a loss that the defendant caused the plaintiff to suffer by its act or omission. To obtain a remedy in a court proceeding, a person must assert a cause of action.
[27] In Grant Thornton, Moldaver J. rejected the argument that there was a meaningful distinction between “claim” and “cause of action” in the context of the N.B. Act (which is similar but not identical to the Ontario Act), stating at para. 37:I recognize that the distinction between “claim” and “cause of action” could be meaningful in some circumstances; but in my view, it is not so here. In fact, the LAA’s own wording shows that the use of “claim” does not rule out a shared meaning with “cause of action”. Section 1(1) defines a claim as a “claim to remedy the injury, loss or damage that occurred as a result of an act or omission”. In short, s. 1(1) indicates that the legislature’s use of the term “claim” focuses on a set of facts giving rise to a remedy, which is the same meaning that Grant Thornton attributes to the term “cause of action”.
|
