Talk:Real Property (Limitations)

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The Godfrey Test - Section 42 of the Real Properties Limitation Act

In Pioneer Corp. v. Godfrey, 2019 SCC 42 (CanLII) the court made a clear distinction on how limitation statutes were to be interpreted. The Supreme Court outlines the methods of interpreting statutory limitations language as follows:

Condition (1)

The limitation date is set by a event that happens at a fixed point in time, such as a death, this is what the Supreme Court calls "the accrual of the cause of action".

Condition (2)

The limitation date is set by sufficient facts coming to the attention of an injured party that would inform the injured party that a loss has been sustained, what the Supreme Court calls "knowledge of the injury"

The question I propose to answer is, under what condition above is section 42 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 to be expressed. The language of section 42 reads:

42 Where land or rent is vested in a trustee upon an express trust, the right of the beneficiary of the trust or a person claiming through the beneficiary to bring an action against the trustee or a person claiming through the trustee to recover the land or rent, shall be deemed to have first accrued, according to the meaning of this Act, at and not before the time at which the land or rent has been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through the purchaser.

The language above is submit is very clear language, the specific phrase "...shall be deemed to have first accrued,..." indicates that the legislator clearly intended that the limitations period as expressed under section 42 would run from a fixed point in time.

Pioneer Corp. v. Godfrey, 2019 SCC 42 (CanLII) further goes on to state:

[36] In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. In Peixeiro, for example, this Court applied the discoverability rule to s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which stated that an action must be commenced within two years of the time when “damages were sustained” (para. 2). The use of the phrase “damages were sustained” rather than “when the cause of action arose” was a “distinction without a difference”, as it was unlikely that the legislature intended that the limitation period should run without the plaintiff’s knowledge (para. 38).

What we see above in paragraph 36 of Godfrey is the comment "...discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury...". Meaning that the trier of fact must probe into the mind of the legislator to determine the true substance of intent that is to be attributed to the limitation statute in question. Nothing in the above language gives any indication that a plaintiff's knowledge is required to trigger the start of the limitations period set under section 42.

The above interperation of section 42 is also consistent with the finding in Sinclair v. Harris, 2018 ONSC 5718, 2018 CarswellOnt 16149. In Harris, at paragraph 28, the court states:

28. The next issue is when the plaintiffs' right to recover the land first accrued. Here, it is the estate of Ms. Rock that is suing on the basis of the resulting trust. I find that there is no juridical reason to treat this distinction as a meaningful one in this context. In my view, the plaintiffs' right to bring an action accrued on the date that the resulting trust was created. In other words, on the date that Ms. Rock gave the defendants the monies to purchase the Beeton property, she could have brought an action for her interest in the property. The fact that she chose not to exercise it did not mean she did not have the right to bring an action for the return of her interest in the land on the day the resulting trust was created: McVan General Contracting Ltd. v. Arthur, [2002] O.J. No. 3336 (Ont. C.A.) at paras. 18-19.

Author: Shaun D. Harvey, B.A