Effect (Expiry of Limitation Period)

Markevich v. Canada, (2003) 1 SCR 94, 2003 SCC 9 (CanLII)

Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: The six‑year limitation period prescribed by s. 32 of the CLPA bars the Crown from collecting the respondent’s federal tax debt. First, as a law of general application, s. 32 presumptively applies on a residual basis to all Crown proceedings. The breadth of the provision’s application can be narrowed only by an Act of Parliament that has “otherwise provided”, either expressly or impliedly, for limitation periods. The Income Tax Act (“ITA”) does not provide for limitation periods within its collection provisions, and the legislative silence with regard to prescription in these provisions, interpreted in conjunction with the express language used in the ITA’s assessment provisions, supports the finding that Parliament intended that limitation provisions of general application apply to the Minister’s collection of tax debts. A purposive interpretation of the ITA confirms this conclusion. Furthermore, the certainty, evidentiary and diligence rationales for limitation periods do not offend the principles of horizontal and vertical equity that should in part govern the ITA and are directly applicable to the collection of tax debts. Second, the ordinary meaning of the phrase “proceedings...in respect of a cause of action” in s. 32 encompasses the statutory collection procedures of the Minister. It would be incongruous to find that s. 32 was intended to apply to the court action but not to the statutory collection procedures that serve the identical purpose. The rationales that support the application of limitation provisions to Crown proceedings apply equally to both the court and non‑court proceedings at issue here. To exclude s. 32’s application to proceedings that are equivalent in purpose and effect to a court action would frustrate the object and aim of the provision. The legislative history of s. 32 also supports the inference that Parliament intended its application to extend beyond proceedings in court. Third, on both a plain and purposive reading of s. 32, the cause of action in this case arose “otherwise than in a province”. Tax debts created under the ITA arise pursuant to federal legislation and create rights and duties between the federal Crown and residents of Canada or those who have earned income within Canada. The debt may arise from income earned in a combination of provinces or in a foreign jurisdiction. The debt is owed to the federal Crown, which is not located in any particular province and does not assume a provincial locale in its assessment of taxes.

[47] Section 3(5) of the B.C. Limitation Act applies a limitation period of six years to actions for which prescription is not “specifically provided for” in another Act. Under s. 1 of the B.C. Limitation Act, an action is defined as including “any proceeding in a court and any exercise of a self help remedy”. I agree with both the motions judge and the Court of Appeal that the term “self help remedy” encompasses the statutory collection procedures available under the B.C. ITA. A statutory collection procedure is a self help mechanism by which the Minister is able to effect a result that could otherwise be achieved only through an action in court. As well, the B.C. ITA does not specifically provide for limitation periods in its collection provisions.

[48] Consequently, the province’s right to pursue collection proceedings under the B.C. ITA is subject to the limitation period set out in s. 3(5) of the B.C. Limitation Act. Moreover, pursuant to s. 9(1) of the B.C. Limitation Act, on the expiration of the limitation period, the province’s right and title to the tax debt is extinguished, and pursuant to s. 9(3), the province’s right and title to interest on the tax debt is extinguished.

[49] As noted above, the federal Crown’s right to collect provincial taxes in this case is no greater than the right delegated to it by the province. Since the province’s collection rights are subject to expiry six years after the underlying cause of action arose, so too are the collection rights of the federal Crown as its agent.

[50] The cause of action here consisted of the tax debt and the expiry of the delay period allowing collection action to be taken on September 16, 1986. The Minister undertook no action in the six years after that date to effect a renewal of the limitation period. Consequently, as of September 16, 1992, the federal Crown became statute-barred from collecting the provincial tax debt. As well, the right and title of any claimant to the respondent’s provincial tax debt, and its accrued interest, were extinguished on that date.

Goodswimmer v Canada (Attorney General), 2017 ABCA 365 (CanLII)

[116] It is also clear that limitation periods can apply to extinguish remedial claims with a constitutional or Charter basis: Kingstreet Investments Ltd. v New Brunswick (Finance), 2007 SCC 1 at para. 59, (2007) 1 SCR 3; Manitoba Métis at para. 134; Ravndahl v Saskatchewan, 2009 SCC 7 at paras. 16-7, (2009) 1 SCR 181. The application of limitation legislation to aboriginal claims does not offend the Constitution.

HOOPP Realty Inc v Guarantee Company of North America, 2019 ABCA 443 (CanLII)

Effect of the Expiry of the Limitation Period

[13] The Guarantee Company argues that the expiry of the limitation period against Clark Builders has the effect of extinguishing any debt owed by Clark Builders to HOOPP Realty. Since that underlying debt has been extinguished, and since the obligations of The Guarantee Company are only collateral to those of Clark Builders, The Guarantee Company has no remaining obligation.

[14] As the trial judge noted (trial reasons at paras. 51-99) in Alberta the expiry of the limitation period does not necessarily extinguish the underlying debt, but only bars the remedy against the particular defendant. The Limitations Act, RSA 2000, c. L-12, s. 3 provides that: “. . . the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim”. These are not words of “extinguishment”, and they were deliberately recommended by the Institute of Law Research and Reform: trial reasons at para. 54.

[15] The appellant relies on other cases, including Tolofson v Jensen, 1994 CanLII 44 (SCC), [1994] 3 SCR 1022. The action in Tolofson arose from a motor vehicle accident in Saskatchewan. The limitation period for motor vehicle accident claims had expired in Saskatchewan, but the plaintiff sued in British Columbia where it had not expired. The issue arose because under conflicts of laws rules, if limitation periods were “procedural” they would be determined by the lex fori, being British Columbia. If limitation periods were “substantive”, they were determined by the proper law of the tort, in this case the law of Saskatchewan. The Supreme Court determined that limitation periods for a tort claim should be treated as substantive for conflict of law purposes, meaning that Saskatchewan law would apply. It did not follow that limitation periods served to “extinguish” the debt. Whatever the effect of the Saskatchewan limitation period (i.e. whether it extinguished the debt, or merely barred the remedy) it was the same whether the lawsuit was in British Columbia or Saskatchewan. Tolofson is not relevant to this appeal.

[16] Another case referred to was Markevich v Canada, 2003 SCC 9 (CanLII), [2003] 1 SCR 94. This case held that a federal tax debt was barred by the expiry of the limitation period. The Court stated in passing at para. 41:

. . . Limitation periods have traditionally been understood to bar a creditor’s remedy but not his or her right to the underlying debt. In my view, this is a distinction without a difference. For all intents and purposes, the respondent’s federal tax debt is extinguished.

This observation was true in the sense that as between the particular debtor (the taxpayer) and the creditor (Revenue Canada) there was no remaining method of collecting the debt, whether it was extinguished or whether the remedy was merely barred. However, stating as a general proposition that this is a “distinction without a difference” is merely circular. There is only no difference if the law chooses to define the effect of the limitation period that way. As this appeal points out, there can be a distinction between extinguishing the debt and barring the remedy.

[17] In summary, the trial judge correctly determined that under Alberta law the expiration of a limitation period does not result in the complete extinguishment of the underlying obligation. Accordingly, the expiry of the limitation period against Clark Builders does not provide an answer to the essential question raised in this appeal.

Threlfall v. Carleton University, 2019 SCC 50 (CanLII)

Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Abella, Karakatsanis, Gascon, Rowe and Martin JJ.: The pension plan unambiguously contemplated the termination of benefits upon R’s actual death, not the date his death was officially recognized. On the plain language of the plan, R was not entitled to benefits following the month of his death. The rebuttal of the presumption of life retroactively extinguished R’s entitlement to the pension payments made while he was an absentee. Because the legal basis for the payments evaporated, R’s former employer’s claim for receipt of a payment not due under art. 1491 C.C.Q. must succeed: assessed retrospectively, the payments were made in error and in the absence of any debt.

[68] Our view that the presumption of life in art. 85 C.C.Q. is rebutted with retroactive effect is further reinforced by a comparison of the consequences of this interpretation with the consequences of the interpretation under which the presumption is rebutted prospectively. Interpreting the rebuttal of the presumption as occurring with retroactive effect ensures that, within the seven-year period, all concerned individuals receive only what they are entitled to, in accordance with the true state of affairs. As we will discuss in the next section of these reasons, this return to the true state of affairs is accomplished through the use of the C.C.Q.’s restitutionary provisions. Windfalls are thus avoided.

[72] Accordingly, in our view, the rebuttal of the presumption of life in art. 85 C.C.Q. by proof of death is retroactive to the true date of death. This means that the discovery of Mr. Roseme’s true date of death caused Carleton’s obligations to be retroactively expunged. We turn now to the discussion of whether and on what basis Carleton may therefore be entitled to restitution of the pension benefits it paid Mr. Roseme after his disappearance.

[85] Alternatively, restitution under art. 1491 C.C.Q. is available where a payment was made under protest to avoid injury (Baudouin and Jobin, at No. 31; Lluelles and Moore, at Nos. 1374-77; see also The Queen v. Premier Mouton Products inc., 1961 CanLII 64 (SCC), (1961) S.C.R. 361, at p. 363; Résidences Melior inc. v. Québec (Ville de), 2009 QCCS 3843 (CanLII); Développements Iberville Ltée v. Québec (Ville), 2005 CanLII 578 (Que. Sup. Ct.)). For instance, a person may pay an outstanding utility bill under protest in response to a utility company’s threat to stop delivering services unless payment is received (6001149 Canada inc. v. Hydro‑Québec, 2007 QCCQ 12042 (CanLII); Marleau v. Hydro‑Québec, 2003 CanLII 6507 (C.Q.)). In such a case, even though there is no error (the payer makes the payment believing that there is no debt), art. 1491 C.C.Q. recognizes that a payment made solely to avoid injury is not made with a liberal intention.

[93] As mentioned, there are two ways of understanding the absence of debt requirement in art. 1491 C.C.Q. Absence of debt is assessed either contemporaneously with payment or retrospectively from the time of the claim. In our view, in the unique situations where a debt existed at a certain time but the basis for it has subsequently fallen away, the existence of the debt must be determined retrospectively. In such circumstances, focusing on whether the foundation of the debt remained intact at the time of the claim is the only way to meet the goals of the restitution regime.

[94] In support of its position, Carleton cites two municipal tax cases from this Court — Willmor and Abel Skiver Farm Corp. v. Town of Sainte‑Foy, 1983 CanLII 22 (SCC), [1983] 1 S.C.R. 403. Though tempting, the similarities between those cases and the case at bar are ultimately superficial. In Abel Skiver and Willmor, taxpayers succeeded in having municipal taxing instruments annulled by challenging the municipalities’ legal authority to demand payment (Abel Skiver, at pp. 415-16 and 423; Willmor, at p. 214). After the taxing instruments were annulled, the Court explained that “recovery of a thing not due” was the appropriate vehicle for the taxpayers’ restitutionary relief (Abel Skiver, at p. 423; Willmor, at p. 220). Carleton argues that the same principles apply here: while the taxpayers in those two cases were under the impression that a debt existed, they later discovered that it did not actually exist, and they were entitled to restitution on that basis.

[107] As discussed, the mere absence of debt is not enough. Payment must be made in error or under protest. We agree with the Court of Appeal that the payments in the instant case were not made under protest to avoid injury. Carleton did not dispute the existence of a debt at the time the payments were made; it acknowledged that the presumption of life in art. 85 C.C.Q. required it to continue to make payments. While Carleton resumed the pension payments during the absence period “without admission of any kind”, its protest was “[a]t best . . . a disagreement with the legislature that a presumption should apply in like circumstances” (C.A. reasons, at para. 108). In any event, the payments were not made to avoid injury. Instead, Carleton simply resigned itself to the fact that art. 85 C.C.Q. required it to continue to make payments under the Plan.

[108] But Carleton did pay in error: there was no intention to make the payments in the absence of a debt. Ms. Threlfall cannot establish that Carleton paid with a liberal intention. Upon discovering that Mr. Roseme had disappeared, Carleton initially sought to terminate the pension payments, but in the end reluctantly continued to make the payments once informed of the effect of art. 85 C.C.Q. It was only the temporary pull of art. 85 C.C.Q. that caused Carleton to make the payments. There was no liberal intention to continue the pension benefits in the absence of a debt.

[109] Carleton paid a debt that was not due in error. Under art. 1492 C.C.Q., when the requirements for receipt of a payment not due are made out, restitution is governed by arts. 1699 to 1707 C.C.Q. Neither party has suggested that this Court should exercise its discretion to refuse restitution under art. 1699 para. 2 C.C.Q. on the basis that restitution would confer an undue advantage on one party. Indeed, this is a clear example of a case in which failing to order restitution would allow one party (Ms. Threlfall) to retain an undue advantage.

[110] In sum, Mr. Roseme is not entitled to the pension benefits paid out following his death either under the Plan or under art. 85 C.C.Q.: the Plan unambiguously contemplated the termination of benefits upon Mr. Roseme’s actual death, and the rebuttal of the presumption in art. 85 C.C.Q. retroactively extinguished the rights rooted in that presumption. Because the legal basis for the payments evaporated, Carleton’s claim for receipt of a payment not due under art. 1491 C.C.Q. must succeed: assessed retrospectively, the payments were made in error and in the absence of any debt. We would therefore dismiss the appeal with costs.

M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), (1992) 3 SCR 6

Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion. This rationale again finds expression in several cases of some antiquity. For example in Cholmondeley v. Clinton (1820), 2 Jac. & W. 1, 37 E.R. 527, the Master of the Rolls had this to say in connection with limitation periods for real property actions, at p. 140 and p. 577, respectively:

The statute is founded upon the wisest policy and is consonant to the municipal law of every country. It stands upon the general principle of public utility. Interest reipublicæ ut sit finis litium, is a favorite and universal maxim. The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right . . . . [Emphasis added.]

Nayeem Uddin v Tubello Stoneworks Ltd., 2018 SKQB 301 (CanLII)

[6] Tubello’s claim against Lifestyles was subject to the two-year basic limitation period provided by s. 5 of The Limitations Act, SS 2004, c L-16.1: Syed v 612565 Saskatchewan Ltd., 2009 SKQB 141 (CanLII), (2009) 7 WWR 682 and West Dee Construction Ltd. v T & B Electric Ltd., 2013 SKQB 260 (CanLII), 425 Sask R 87. Accordingly, the limitation period relating to the commencement of an action as provided by s. 86(1) of the Act expired before either of the parties applied for payment out.

[7] Mr. Uddin submitted that the expiration of the limitation period did not affect his right to apply for payment out pursuant to s. 56(4) of the Act or the court’s authority to make an order to facilitate the resolution of all claims pursuant to s. 57(5). He noted that in Axcess Capital Partners Inc. v Allsteel Builders (2) Ltd., 2015 SKCA 33 (CanLII) at paras 29-33, [2015] 5 WWR 105, Jackson J.A. indicated it was an open question as to whether the expiration of the limitation period extinguishes not only the right to enforce a claim by way of a statement of claim but the underlying claim itself. As she noted, the commencement of an action is not the only tool available to the parties to resolve a construction dispute. Section 56(4) applications and s. 57(5) orders are also an option when money has been paid in.

[8] This extinguishment issue has not been dealt with further by the Court of Appeal. However, it was considered in P.J.D. Holdings (1989) Ltd. v Kasa Construction Ltd., 2016 SKQB 103 (CanLII), (2016) 11 WWR 510 (Kasa). Kasa also dealt with competing applications pursuant to s. 56(4) of the Act for payment out of funds paid in to vacate a lien. Chicoine J. concluded (at para. 29) that the lien filed by Kasa Construction Ltd. was void, as the two-year limitation period applicable to its claim against P.J.D. Holdings Ltd. had expired. As he put the matter (at para. 27), “an application under s. 56(4) for a determination who is entitled to the funds in court does not revive the right to commence a proceeding in respect of a claim that is already statute barred”. He commented that he was not prepared to permit Kasa Construction Ltd. to “circumvent the requirement” in s. 86(1) of the Act to commence an action to enforce a claim of lien by statement of claim: see para. 28.

[9] I agree with the result in Kasa. I note that Kasa is also consistent with Neudorf Estate v Sellmeyer, 2012 SKQB 463 (CanLII), (2013) 3 WWR 349 and Chalupiak & Associates Accounting Services Inc. v Piapot First Nation, 2018 SKQB 131 (CanLII), both of which considered the effect of the expiration of the limitation period fixed by s. 5 of The Limitations Act on the underlying right. In both of those cases, the court – citing Tolofson v Jensen; Lucas (Litigation Guardian of) v Gagnon, 1994 CanLII 44 (SCC), (1994) 3 SCR 1022, Markevich v Canada, 2003 SCC 9 (CanLII) at para 41, (2003) 1 SCR 94 and Castillo v Castillo, 2005 SCC 83 (CanLII) at para 7, (2005) 3 SCR 870 – concluded that the expiration of the limitation period extinguished the underlying claim.

[10] For these reasons, it is my opinion Tubello’s underlying claim did not survive the expiration of the limitation period. Absent any evidence of competing claims, Mr. Uddin is the person entitled for purposes of s. 56(4). In the result, his application is granted.

Chalupiak & Associates Accounting Services Inc. v Piapot First Nation, 2018 SKQB 131 (CanLII)

[82] Section 5 of The Limitations Act sets out the general limitation of actions:

5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered.

[93] There is, however, an additional time period which must be considered, that of the time period going back two years prior to August 13, 2013. There appears to be nothing offered by Chalupiak to bridge the gap between August 13, 2011 and August 13, 2013. If the limitation period had already run, an acknowledgement after that may not be capable of engaging the protection of s. 11. The concern is that once the limitation period has run, the initial claim may have been extinguished unless the issue is properly characterized as one of being merely a procedural impediment.

[94] Aucoin v Murray, 2013 NSSC 37 (CanLII), 326 NSR (2d) 218 [Aucoin] faced this same issue. Justice Wood resolved the issue with reference to the Supreme Court of Canada decision in Tolofson v Jensen, Lucas (Litigation Guardian of) v Gagnon, 1994 CanLII 44 (SCC), [1994] 3 SCR 1022 [Tolofson] which concluded limitation periods are substantive as opposed to procedural. In Tolofson Justice La Forest examined the historical reasons for holding that a statutory limitation provision was procedural and rejected those reasons. His conclusion was that the Saskatchewan limitation provision under consideration was substantive. This was not, in his view, only in the context of conflict of laws discussions, as the Supreme Court repeated its view that limitation provisions are substantive in Markevich v Canada, 2003 SCC 9 (CanLII), at para 41, [2003] 1 SCR 94, and in Castillo v Castillo, 2005 SCC 83 (CanLII), at para 7, [2005] 3 SCR 870.

[95] Mr. Graeme Mew summarizes the issue in his text, Graeme Mew, Debra Rolph & Daniel Zacks, The Law of Limitations, 3d ed (Toronto, LexisNexis, 2016) in the following passage found at 111-112:

I. WHAT IS EXTINGUISHED - A SUBSTANTIVE RIGHT OR MERELY THE REMEDY TO ENFORCE IT?

1.1 The Common Law Position

4.1 The common law has traditionally considered statutes of limitation to be procedural, as contrasted with the position in most civil law countries, where limitations are regarded as substantive.

4.2 As a result, limitation provisions found in Canadian statutes have, for the most part, been interpreted as extinguishing remedies, rather than substantive legal rights. Thus, one commonly finds that an action must be commenced “within” or “within and not after” the prescribed period. As a result, although a party is barred from enforcing its remedies once the time period has expired, its legal right will survive. The rationale for this approach is explained as follows:

Extinguishing rights is not an objective of a limitations system. Rather, its objective is to force the timely litigation of disputes if there is to be litigation. Nevertheless, if, pursuant to a limitations statute, a defendant gains immunity from liability to any remedy which the law provides for the enforcement of the right upon which the claim as based, the right, although not extinguished, will become sterile.

4.3 Thus, in the absence of a remedy to enforce a right, such right, in and of itself, is of little, if any value. Therefore, it is not surprising that both case law and legal texts seldom distinguish between whether it is the right or the remedy that is lost upon the expiration of the limitation period.

4.4 However, the traditional common law approach is changing. In 1994, the Supreme Court of Canada in Tolofson v. Jensen set aside the old common law rule of interpretation, at least in the context of conflicts of law. Mr. Justice La Forest, for the majority, expressed the view that the civil law approach is more persuasive, and that the reasons that formed the basis of the common law rule were out of place in the modern context. Mr. Justice La Forest cited other Canadian decisions where courts had begun to undermine the mystique that statutes of limitations are directed at the remedy and not the right. He held that the Saskatchewan limitations statute created an accrued right, specifically, a right in the defendant to plead a time bar and, as such, was substantive and not procedural. Professor Castel in particular has interpreted this decision as meaning that technical distinctions between rights and remedies are now outdated. This same scholar sees the Supreme Court’s decision in Tolofson as a “burst of judicial creativity” which stands for the proposition that statutes of limitation confer substantive rights, and that it is no longer necessary to rely on the language used in the relevant limitations provisions to determine if it extinguishes the right or bars the remedy.

[96] By further considering the views of various authors Justice Woods in Aucoin affirmed that in that situation when a limitation period had expired, the underlying right was in fact extinguished as opposed to there being a suspension of procedural rights related to enforcement:

40 The following passage from Mew, The Law of Limitations supports my conclusion (p. 115):

An acknowledgment or part payment cannot revive a right that has been extinguished. It does, however, provide an additional limitation period for the pursuit of a remedy where a right still exists.

41 In 2005, the Uniform Law Conference of Canada approved a Uniform Limitations Act which included a section codifying rules with respect to acknowledgments and part payments. Section 11(10) of the proposed legislation provided that an acknowledgment would only be effective if made before the expiry of the limitation period:

(10) 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.

[97] This position has been adopted in Saskatchewan as well. Justice Currie in Neudorf Estate, Re, 2012 SKQB 463 (CanLII), 407 Sask R 156 stated:

18 For these reasons I adopt Justice Clark's analysis and conclusions of law as set out in Moody Moody v Moody, 2011 ABQB 222 (CanLII), (2011) 12 WWR 740 The expiration of the limitation period served not only to bar a court action but also to extinguish the debt to which the limitation period applied.

[98] Once a limitation period has expired in Saskatchewan, the underlying claim is extinguished. The application of this conclusion here means that debts which were created prior to August 13, 2011 would normally cease to be the source for a cause of action after August 13, 2013. Given the only acknowledgment advanced is that of August 13, 2013 it would only save debts still capable of an action incurred after August 13, 2011.

[100] Similarly with respect to the argument that a forbearance agreement exists, the facts presented to date are not sufficient to establish it. Chalupiak says he met with band representatives on March 5, 2014, but it has not been established that they acknowledged his claim to the debt at that time or agreed with Chalupiak to his interpretation of it being forbearance on his behalf. Piapot requested information and have indicated they believed it was almost entirely paid. It has not been shown that Piapot agreed to Chalupiak’s forbearance at this point nor that there was consideration given for the forbearance as required by Hamilton (City) v Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156 (CanLII), 347 DLR (4th) 657.

[101] Even if a forbearance agreement were found, it would only have the effect of suspending the limitation period for the time of forbearance. If the limitation period had already run, it would not revive a defunct cause of action. As the August 13, 2013 date precedes March 5, 2014 it would be of no added assistance in any event as August 13, 2011 is considerably earlier than March 5, 2012.

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

Notice of possible claim

14 (1) A person against whom another person may have a claim may serve a notice of possible claim on the other person. 2002, c. 24, Sched. B, s. 14 (1).

Contents

(2) A notice of possible claim shall be in writing and signed by the person issuing it or that person’s lawyer, and shall,

(a) describe the injury, loss or damage that the issuing person suspects may have occurred;

(b) identify the act or omission giving rise to the injury, loss or damage;

(c) indicate the extent to which the issuing person suspects that the injury, loss or damage may have been caused by the issuing person;

(d) state that any claim that the other person has could be extinguished because of the expiry of a limitation period; and

(e) state the issuing person’s name and address for service. 2002, c. 24, Sched. B, s. 14 (2).

Effect

(3) The fact that a notice of possible claim has been served on a person may be considered by a court in determining when the limitation period in respect of the person’s claim began to run. 2002, c. 24, Sched. B, s. 14 (3).

Grant v. Equifax Canada Co., 2016 ONCA 500 (CanLII)

[6] The Limitations Act, 2002, by contrast, applies to bar “claims pursued in court proceedings” that are commenced outside the applicable limitation period. The Act does not apply to the CRA, whether expressly or by implication. Indeed, the CRA contains its own specific provisions prohibiting the inclusion of certain information in consumer reports, including debts or collections more than seven years old, unless confirmation that the debt or collection is not barred has been obtained. The CRA expressly contemplates that debts not reduced to judgment that are up to seven years old may be reported (see s. 9(3)(f)). This makes sense, as the passing of a limitation period does not extinguish a debt; it only precludes the commencement of a court proceeding for its enforcement. As such, the reporting of debts after a limitation period has passed, is not inconsistent with the purposes of the CRA, and is expressly contemplated by its terms.

Temple, Re 2012 CarswellOnt 2817

11 The debt owing by Mr. Temple to the applicant was due on May 31, 2006 and the last payment of any kind was made in November 2007. The application for a bankruptcy order was issued on February 3, 2011, more than two years after the debt was due, and no action had been commenced to collect on the debt.

12 It is contended by Mr. Klotz on behalf of Mr. Temple that the debt owing to the applicant is statute barred and that it therefore cannot support an application for a bankruptcy order. There is no Canadian authority for the proposition advanced on behalf of Mr. Temple. Reliance is placed upon the following statement in Houlden, Morawetz and Sarra, Bankruptcy & Insolvency Law of Canada, 4th ed. revised, vol. 4. P. 2-39 (Carswell): "The debt must be recoverable by legal process. Accordingly, if a debt is statute barred, it is not a sufficient debt for an application: Re Tynte, Ex parte Tynte (1880), 15. Ch. D. 125". It is contended that the debt of the applicant must not be statute barred both at the date the application for a bankruptcy order was commenced and at the date of the hearing of the application.

14 I would not follow Re Tynte. The legislation in England in 1874 was different from the current limitations legislation in Ontario. Under the Limitations Act, 2002, a proceeding shall not be commenced in respect of a "claim" more than two years after the claim was discovered. Section 1 defines a "claim" to mean "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission". I do not think it can reasonably be said that a bankruptcy application is a proceeding in respect of a claim to remedy an injury, loss or damage that occurred as a result of an act or omission. Thus the Limitations Act, 2002 is not applicable to a bankruptcy application.

15 Thus, if the Limitations Act, 2002 does not prevent a bankruptcy application, what reason would there be to prevent an application because it is based on a debt for which a law suit was not brought to enforce it within two years of the bankruptcy application?

16 The BIA requires that there must be a debt "owing" to the applicant who applies for a bankruptcy order. If the debt was owed more than two years before the bankruptcy application, and thus a proceeding to obtain a judgment on it was statute barred, could it be said that the debt was "owing"?

18 The issue is whether a debt has been extinguished by the lack of any action having been brought within two years as required by the Limitations Act, 2002. The statute does not purport to state that a debt or other obligation is extinguished, but only that a proceeding shall not be commenced in respect of it.

20 Graeme Mew points out that the traditional common law approach is changing, and cites Tolofson v. Jensen, [1994 3 S.C.R. 1022 (S.C.C.)]. That case dealt with the tort law that should apply in cases involving a plaintiff suing in one province for a tort committed in another. The Supreme Court changed the law to provide that the tort law of the place of the accident, the lex loci delicti, should apply rather than the law of the province in which the suit was brought, the lex fori. It also held that a limitation period in the lex loci delicti should apply, and in so doing held that at least for the purposes of conflicts of laws, it should be considered as substantive law rather than procedural. LaForest J. stated:

The common law traditionally considered statutes of limitation as procedural, as contrasted with the position in most civil law countries where it has traditionally been regarded as substantive.

. . .

I must confess to finding this continental approach persuasive. The reasons that formed the basis of the old common law rule seem to me to be out of place in the modern context. The notion that foreign litigants should be denied advantages not available to forum litigants does not sit well with the proposition, which I have earlier accepted, that the law that defines the character and consequences of the tort is the lex loci delicti. The court takes jurisdiction not to administer local law, but for the convenience of litigants, with a view to responding to modern mobility and the needs of a world or national economic order.

. . .

I do not think it is necessary to await legislation to do away with the rule in conflict of laws cases. The principle justification for the rule, preferring the lex fori over the lex loci delicti, we saw, has been displaced by this case. So far as the technical distinction between right and remedy, Canadian courts have been chipping away at it for some time on the basis of relevant policy considerations. I think this Court should continue the trend. It seems to be particularly appropriate to do so in the conflict of laws field where, as I stated earlier, the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties.

21 It is understandable that the Supreme Court said what it did about limitation periods when it held that the rights of the parties should be governed by the lex loci delicti. That is because historically, procedural rules of the lex fori governed law suits, and unless the limitation period in the lex loci delicti could be considered a substantive right, it would not apply. The Supreme Court was concerned to ensure that all of the rights of the parties should be governed by the lex loci delicti.

26 Another example would be a Cherry v. Boultbee [(1939), 41 E.R. 171 (Eng. Ch. Div.)] situation, a rule which confers a right analogous to that of set-off. This rule applies to cases where a person obligated to contribute to a fund is entitled to make a claim against that fund. The rule allows the administrator of the fund to require that the person obligated must fulfill the duty to contribute before being allowed to participate in the fund. The theory is that the person obligated satisfies its own claim by receipt of an asset of the fund, i.e., its own indebtedness. See Olympia & York Developments Ltd. v. Royal Trust Co. (1993), 14 O.R. (3d) 1 (Ont. C.A.) and Paragon Development Corp. v. Sonka Properties Inc. (2009), 96 O.R. (3d) 574 (Ont. S.C.J.), aff'd. (2011), 103 O.R. (3d) 481 (Ont. C.A.). There would be no policy reason to ignore the rule because a limitation period precluded a claim against the person obligated to contribute to the fund. Indeed, albeit pre Tolofson, the Supreme Court held in Canada Trust Co. v. Lloyd, [1968] S.C.R. 300 (S.C.C.) that the rule in Cherry v. Boultbeeapplied in spite of a limitation period having expired against the persons obliged to contribute. Hall J. stated: The three directors in question took the moneys and enjoyed the full benefits thereof since 1921. Their situation is analogous to that of a legatee who must bring into account even a statute barred debt before he can claim the legacy left to him in the testator's will.

27 Tolofson did not deal at all with this kind of a situation, or a situation like a bankruptcy application of the kind before me, and I do not read it as requiring a conclusion that a debt will be extinguished if a suit to enforce a creditor's right to payment is not commenced within an applicable limitation period.

28 In my view, in Ontario it cannot be said that a debt is extinguished if an action on the debt is not brought within two years of its being due. Rather, the debt continues to be owed. Thus such a debt can be the basis on which an application for a bankruptcy order can be made. Such a debt can also be the basis for a provable claim by a creditor in a bankruptcy. This would not, of course, preclude an order in a proper case under section 43(11) of the BIA staying a bankruptcy application if it were inequitable to permit the application for some kind of laches, perhaps of the kind involved in Re Tynte.

29 In summary, the Limitations Act, 2002 is not applicable to a bankruptcy application. Moreover, the fact that no suit has been brought on a debt owing to the applicant within two years of the date of the bankruptcy application is no defence to a bankruptcy application based on that debt as the debt continues to be owed.