Limitation Period (Debt)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1965
Page Categories:	Limitations
Citation:	Limitation Period (Debt), CLNP 1965, <7t>, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2022/08/10

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Limitations Act, 2002, S.O. 2002, c. 24, Sched. B

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).

(...)

Acknowledgments

13 (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.

Interest

(2) An acknowledgment of liability in respect of a claim for interest is an acknowledgment of liability in respect of a claim for the principal and for interest falling due after the acknowledgment is made.

Collateral

(3) An acknowledgment of liability in respect of a claim to realize on or redeem collateral under a security agreement or to recover money in respect of the collateral is an acknowledgment by any other person who later comes into possession of it.

Realization

(4) A debtor’s performance of an obligation under or in respect of a security agreement is an acknowledgment by the debtor of liability in respect of a claim by the creditor for realization on the collateral under the agreement.

Redemption

(5) A creditor’s acceptance of a debtor’s payment or performance of an obligation under or in respect of a security agreement is an acknowledgment by the creditor of liability in respect of a claim by the debtor for redemption of the collateral under the agreement

Trustees

(6) An acknowledgment by a trustee is an acknowledgment by any other person who is or who later becomes a trustee of the same trust.

Personal property

(7) An acknowledgment of liability in respect of a claim to recover or enforce an equitable interest in personal property by a person in possession of it is an acknowledgment by any other person who later comes into possession of it.

Liquidated sum

(8) Subject to subsections (9) and (10), this section applies to an acknowledgment of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgment refuses or does not promise to pay the sum or the balance of the sum still owing.

Restricted application

(9) This section does not apply unless the acknowledgment is made to the person with the claim, the person’s agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada) before the expiry of the limitation period applicable to the claim.

Same

(10) Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person’s agent.

Same

(11) In the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is made or by the person’s agent has the same effect as the acknowledgment referred to in subsection (10).

1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi, 2021 ONSC 3477 (CanLII)

[2] The "limitations clock" presumptively begins to tick on the date of the act or omission that gives rise to the claim. But that date can be extended in certain circumstances. One of those circumstances is where a debtor acknowledges a debt to a creditor in writing. Where that occurs, the clock begins to tick on the date of the acknowledgment.

(...)

[36] In my view, it is sufficient that the debtor acknowledges that the debt claimed is owing, though he or she may dispute the precise amount or may refuse to pay. If it were otherwise, a written and signed statement by a debtor that he or she accepts that 95 per cent of a claimed debt is owing, but disputes the other 5 per cent, would be an ineffective acknowledgment under s. 13 of the Act. That cannot be the case.

(...)

[44] The trial judge concluded that the requirements of s. 13(10) had been met. In my view, he was correct, although I would reach that conclusion in a slightly different manner than he did.

[45] The trial judge based his conclusion on the authenticity of the June 2, 2016 text messages, citing in support of that conclusion the case of Lev v. Serebrennikov, [2016] O.J. No. 1612, 2016 ONSC 2093 (Div. Ct.). There, Patillo J., sitting as a single judge of the Divisional Court, considered whether an e-mail, with the debtor's name on it, could satisfy the requirements of s. 13 of the Act. He found that it could, saying "[t]he issue in every case will be one of fact concerning authenticity" (at para. 24).

[46] I agree that the signature requirement of s. 13(10) is grounded in concerns about authenticity. But the plain wording of the section cannot simply be ignored, in my view, even if the court is satisfied about authenticity by a means other than a signature.

[47] On the facts of the case at bar, Dr. Ghotbi's texts were obviously not "signed" in the traditional sense. But s. 13(10) does not prescribe any particular type of signature.

[48] The world is changing. Everyone knows that. We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one's signature to a document, but other, more modern means, including digital signatures.

Palios v Wasilewski, 2016 CanLII 51829 (ON SCSM)

[101] A solicitor’s account is clearly a liquidated sum. I have found the email from Wasilewski does speak to compensation beyond that of the probate fees, bringing it within the broad parameters of s 13 (1). Looking at s 13 (9), it was also made to the person with the claim [Palios]. Under s 13 (10), the acknowledgment has to be in writing. Mr Diduch accepted an email could so qualify.

[102] This does not, however, end the analysis. In interpreting s 13, the courts have outlined certain additional requirements to confirm any alleged acknowledgment, reflecting the fact s 13 is an exception, extending a limitation period.

[103] In RZCD Law Firm LLP v Associated Credit & Collection Agencies, [2013] O.J. No. 6449, Deputy Judge Kurz dealt with sundry unpaid invoices. One of the matters for determination was whether there had been an unambiguous acknowledgment in writing relative the unpaid invoices within the two year limitation, thereby resetting the limitation period.

[104] After reviewing case law, Deputy Judge Kurz ruled he had to determine

a) if the acknowledgement was in writing

b) whether it was signed and

c) if it was unambiguous [para 30].

On the facts, it was determined the last of a series of emails about paying the outstanding accounts was within two years of when the action was commenced. The debtor was not entitled to rely on a limitation defence concerning most of the unpaid invoices.

[105] There is some ambiguity in the cases as to how specific any acknowledgment need be re the sum owed. In RZCD, the debt was for $13,680.13. An email from the debtor had noted in part “’It’s like $13K!!!’”. Deputy Judge Kurz ruled same amounted to an unambiguous acknowledgment “…that a certain debt is owing” [at para 35]. If applied to the within action, as the Plaintiff’s Claim was issued on December 23, 2013, within two years of the purported May 31, 2012 acknowledgment, it would not be statute-barred.

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