Effect (Expiry of Limitation Period)

Vellenga v. Boersma, 2020 ONCA 537 (CanLII)

[45] Furthermore, this court has explained that “[t]he expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded”: Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 21. While this matter was commenced by way of application and did not involve formal pleadings, the key point is that the limitation argument was not raised at any time prior to this appeal.

Somers v. Fournier, 2002 CanLII 45001 (ON CA)

[55] English courts have also recognized a distinction between laws which deny a remedy in respect of a particular head of damage in negligence (a substantive law) and those which affect the quantification of damages concerning a particular head of damage (a procedural law). (See Chaplin v. Boys, [1969] 2 All E.R. 1085, [1971] A.C. 356 (H.L.); Coupland v. Arabian Gulf Petroleum Co., [1983] 2 All E.R. 434 (Q.B.); and Caltex Singapore Pte. Ltd. v. B.P. Shipping Ltd. , [1996] 1 Lloyd's Rep. 286 (H.C.J.), overruled on other grounds in Herceg Novi v. Ming Galaxy, [1998] 4 All E.R. 238 (C.A.).)

Pioneer Corp. v. Godfrey, 2019 SCC 42 (CanLII)

[31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), (1986) 2 S.C.R. 147, at p. 224; Ryan, at paras. 2 and 22).

[48] Consideration of these rationales for limitation periods affirms discoverability’s application here. Even recognizing that shorter limitation periods indicate that Parliament put a premium on the certainty that comes with a limitation statute’s function of repose (Peixeiro, at para. 34), balancing all of the competing interests underlying s. 36(4)(a)(i) weighs in favour of applying discoverability. The ability of plaintiffs to advance claims for loss arising from conduct contrary to Part VI of the Competition Act outweighs defendants’ interests in barring them, especially where such conduct is, as I have already noted, concealed from plaintiffs (Fanshawe, at para. 46) (such that the evidentiary rationale — that is, the concern about evidence going “stale” — has no place in the analysis). To hold otherwise would create perverse incentives, encouraging continued concealment of anti-competitive behaviour until the two-year limitation period has elapsed. It would therefore not only bar plaintiffs from pursuing their claims, but reward concealment that has been “particularly effective” (Fanshawe, at para. 49).

[138] Limitation clauses are statutory provisions that place temporal limits on a claimant’s ability to institute legal proceedings. The expiry of a limitation period has the effect of “extinguish[ing] a party’s legal remedies and also, in some cases, a party’s legal rights” (G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed. 2016) (“Mew et al.”), at p. 3). As this Court explained in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), (1992) 3 S.C.R. 6, statutory limitation clauses reflect the balance struck by the legislature between three distinct policy rationales: granting repose to defendants, avoiding evidentiary issues relating to the passage of time, and encouraging diligence on the part of plaintiffs.

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

[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.

[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.

Jim Shot Both Sides v. Canada, 2019 FC 789 (CanLII)

[380] Canada pleads statutory limitations periods and the equitable limitations of laches, acquiescence, election, delay, waiver, and estoppel. I will first analyze Canada’s defence based on the Acts incorporated by subsection 39(1) of the Federal Courts Act; namely the Crown Liability Act, The Limitation of Actions Act, 1935, SA 1935, c 8 [The Limitation of Actions Act, 1935], The Limitation of Actions Act, RSA 1970, c 209 [The Limitation of Actions Act, 1970], and the Limitation of Actions Act, RSA 1980, c L-12 [Limitation of Actions Act, 1980]. I will then consider the equitable defences Canada has raised in its Amended Statement of Defence.

[382] Canada submits that because the events relevant to this proceeding occurred prior to 1953, the breach of fiduciary duty, and breach of treaty claims are time-barred. The Blood Tribe submits in reply that the Crown Liability Act has no application to this claim because it only creates the right to bring actions against the Crown for tort. The right to bring an action against the Crown for breach of fiduciary duty exists independent of this Act.

[383] I agree with the Blood Tribe that the Crown Liability Act has no application to this action. Subsection 24(1) expressly states that the limitations only apply to actions “proceedings taken against the Crown under this Act” [emphasis added]. A review of this Act shows that proceedings may be brought under it with regards to tort, but there is no mention of fiduciary duty, breach of treaty, or any catch-all provision. I agree with the Blood Tribe that the ability to bring an action against the Crown for breach of fiduciary duty arises independent of this statute: see, for example Guerin at paragraphs 94 to 105. The same is true of breach of treaty, which is discussed below.

[385] With respect to the reserve created by the 1882 survey, the Blood Tribe says that “a provincial limitation statute cannot deprive the Bloods of ‘lands reserved for Indians’ once a reserve is created.” With respect to the TLE claim, it says that “a provincial limitation statute cannot extinguish a treaty right” and it says that the TLE is a treaty right.

[386] Its submission is that limiting these claims would affect “Lands reserved for the Indians” which falls under the Federal Government’s jurisdiction under subsection 91(24) of the Constitution Act, 1867, 30 & 31 Victoria, c 3 (UK).

[387] Provincial limitations laws apply by virtue of subsection 39(1) of the Federal Courts Act, RSC 1985, c F-7:

Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceeding in the Federal Court of Appeal or the Federal Court in respect of any cause of action arising in that province.

[388] Canada submits that the argument being advanced by the Blood Tribe has previously been considered and rejected by this and higher courts. Justice Russell in Samson Indian Nation v Canada, 2015 FC 836 [Samson] at paragraphs 111 to 113 recently addressed it. Relying on the decisions of the Supreme Court of Canada in Wewaykum and Canada (Attorney General) v Lameman, 2008 SCC 14 (sub nom Papaschase) [Lameman], he held at paragraph 112 that “limitations legislation as well as the principles of laches and acquiescence, are applicable to claims against Canada where the rights at stake are constitutionally-protected treaty and Aboriginal rights.” His judgment was affirmed on appeal [39] and an application for leave to appeal to the Supreme Court of Canada was dismissed. [40]

[392] I reject the submission of the Blood Tribe that provincial limitations legislation can have no application to the claims in this action for at least two reasons.

[394] Second, there is a fundamental flaw in the Plaintiffs’ submission that the limitations legislation deprives it of reserve land or extinguishes a treaty right. Limitations and prescriptions do no such thing; rather, they provide that a proceeding in respect of a claim to reserve land or a treaty right must be initiated within a certain period after the discovery of the claim. The inability later to pursue the claim is because of the inaction of the plaintiff. A substantial difference exists between a law that extinguishes a right and one that limits when that right can be enforced against another.

[395] This point was effectively made by Justice Russell in Samson at paragraph 129:

Samson's second argument is that the application of a limitation period effectively expunges or infringes constitutionally-enshrined Aboriginal and treaty rights. In my view, Samson is simply asking the Court to ignore clear authorities that tell us that limitation periods do not expunge rights, they bar remedies based upon those rights. As Chippewas, above, makes clear, the seeking of a remedy is not an Aboriginal or treaty right, and limitations periods merely bar the remedy. Samson ignores the line of cases that makes a distinction between substantive and procedural law in the context of limitations and relies upon Tolofson , above, a conflict of law case, for the motion now before the Court where we have an established line of authority on point, where the Supreme Court of Canada has told us that limitation periods do apply to this kind of case.

Aucoin v. Murray, 2013 NSSC 37 (CanLII)

[11] Ms. Aucoin’s notice of application included the following factual allegations:

1) She made three loans to Mr. Murray in October, 1980, November, 1979 and February, 1995.

2) Mr. Murray made sporadic payments with respect to the 1979 and 1980 loans which stopped in the 1990's.

3) Mr. Murray made no payments on the loan made in February, 1995.

4) On November 11, 2008, Mr. Murray acknowledged the debts in writing.

5) In 2009, Mr. Murray made three payments of $1,200.00, which were applied to each of the three loans.

[14] In 1994, the Supreme Court of Canada issued its decision in Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022. In that case, the Court concluded that limitation statutes should be treated as substantive rather than procedural in nature. The impact of that decision is the focus of the arguments advanced by counsel in this matter. Mr. Graeme Mew nicely summarized the issue in his text, The Law of Limitations, (2 ed.) (Butterworths, 2004) in the following passage found at pp. 64-66:

(...)

[15] Tolofson was a conflict of laws case where the court was called upon to decide which limitation period applied to the claim - the one in the jurisdiction where the claim arose or where the litigation was taking place. Under conflict rules, this issue was determined by whether the law in question was categorized as substantive or procedural in nature.

[19] Over the last decade, some jurisdictions in Canada have amended their limitation statutes to specifically provide for substantive extinguishment of a claim upon expiry of the limitation period. One example is s. 9(1) of the British Columbia Limitation Act, R.S.B.C. 1996, c. 266.

[20] In Nova Scotia, there is no express statutory provision and so the effect of the expiry of a limitation period falls to be determined on the principles arising out of Tolofson and subsequent cases.

[29] In Dyck v. Sellmeyer, 2012 SKQB 463, the Saskatchewan Court of Queen’s Bench also considered the effect of the expiry of a limitation period. That case involved the interpretation of a will, where the testatrix directed that bequests to her children should be reduced by any money they might owe to her.

[30] There was evidence of loans from the deceased to her children for which the limitation period had expired. The Court adopted the approach of Justice Clark in Re Moody Estate and concluded that the debts had been extinguished by the passing of the limitation period. The Court’s analysis is set out in the following passage from the decision:

[12] In the context of statutory limitation provisions, a distinction has long been recognized between the loss of the right to sue and the continued existence of the underlying claim. Traditionally, a statutory limitation provision was seen as procedural only, barring the commencement of action but not affecting the continued existence of the debt or other claim underlying the action. That distinction has changed.

[13] The development of that change was discussed by Justice Clark in Moody v. Moody, 2011 ABQB 222, (2011) 12 W.W.R. 740, at paragraphs 16-33. The discussion applies equally in Saskatchewan, even though there are some differences in the wording of the statutes. The Alberta statute describes the operation of the limitation period in terms of the defendant being “entitled to immunity from liability in respect of the claim”, whereas the Saskatchewan statute describes the operation of the limitation period by providing that “no proceedings shall be commenced with respect to a claim”. Nonetheless, the evolution of statutory limitation provisions from procedural to substantive has occurred irrespective of the precise wording of the statutes.

[14] The evolution has occurred, not based on the particular wording of statutory limitation provisions, but by way of adoption in principle of civil law approach in which the extinguishment of the right to sue has become the extinguishment of the underlying debt or other cause of action. Indeed, the Supreme Court of Canada’s earliest express recognition of the shift appeared in a case addressing the predecessor of the current Saskatchewan statute, that predecessor bearing wording similar to that in the current statute: Tolofson v. Jensen, 1994 CanLII 44 (SCC), (1994) 3 S.C.R. 1022, (1994) S.C.J. No. 110 (QL).

[15] In Tolofson Justice La Forest examined the historical reasons for holding that a statutory limitation provision is procedural and he rejected those reasons, concluding that the Saskatchewan limitation provision under consideration was substantive. Tolofson was a conflict of laws case, but there is no reason for thinking that Justice La Forest’s analysis would differ in any other context. No reason is apparent for limitation periods being substantive in a conflict of laws context but being procedural in other contexts. To the contrary, Justice La Forest’s analysis was not tied to the conflict of laws context. Rather, it was concerned with the logic and practicality of statutory limitation provisions generally being substantive rather than procedural.

[16] Indeed, at paragraph 85 Justice La Forest adopted the “substantive” view in broad terms, then remarked on its particular - but not exclusive - application in the conflict of laws context:

... 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 .... [Emphasis added]

[17] Since Tolofson the Supreme Court has repeated its view that limitation provisions are substantive, as represented by its remarks in Markevich v. Canada, 2003 SCC 9, (2003) 1 S.C.R. 94, at paragraph 41, and in Castillo v. Castillo, 2005 SCC 83, (2005) 3 S.C.R. 870, at paragraph 7.

[18] For these reasons I adopt Justice Clark’s analysis and conclusions of law as set out in Moody. 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. This result is not affected by the rule in Cherry v. Boultbee (1839), 4 My & Cr 442 (prohibiting a beneficiary who owes money to an estate from participating in the estate unless the beneficiary pays the debt), a rule whose application has been superseded by the development of the law relating to statutory limitation provisions.

[19] The result in this case is that, at the time of Ms. Neudorf’s death, none of her children owed money to her. Therefore, I direct the executor to distribute the estate on the basis that none of the beneficiaries owed Ms. Neudorf money at the time of her death.

[31] I have not been referred to any other authorities which specifically address the question of the effect of expiry of a limitation period in the post Tolofson era. Despite this, I am satisfied that the rationale of Justice La Forest, as adopted by the Alberta and Saskatchewan Courts, represents the current state of the law in Canada. Once a limitation period has expired, the underlying claim is extinguished.

Moody Estate (Re), 2011 ABQB 222 (CanLII)

[1] The deceased, Leona Mae Moody, died on December 3, 2005, leaving four adult children. Her husband had predeceased her. Pursuant to the deceased’s Will dated August 24, 2004, two of her children, the Applicant James Hector Moody and his sister Tyrell Lou Moody Boehme, were appointed executors of the deceased’s estate. The deceased’s four children are residuary beneficiaries in equal shares.

[2] It is alleged that, during her lifetime, the deceased made loans to her son, the Respondent Charles Reginald Cecil Moody. The loans are alleged to have been made between 1977 and 2005. Following the deceased’s death, the executors sought payment of the loans from the Respondent. The Respondent refused to pay and disputes that he owed any money to the deceased. It is important to note that the merits of the argument with respect to the alleged loans are not presently before me.

Issues

[3] Pursuant to a direction I gave at a case management meeting on December 9, 2009, the Applicant brought this motion to determine two issues. First, are the alleged debts barred by the Limitations Act, R.S.A. 2000, c. L-12? Second, if the alleged debts are not statute-barred, is there a further limitation period within which the personal representatives must commence proceedings to enforce them? To this has been added a third issue, namely, if the alleged debts are statute-barred, can the personal representatives nevertheless take them into account in distributing the estate pursuant to the so-called rule in Cherry v. Boultbee, (1839), 4 My & Cr 442, as discussed below?

Analysis

Are the Alleged Debts Statute-Barred?

[4] The relevant provisions of the Limitations Act are as follows:

Limitation periods

3(1) Subject to section 11, if a claimant does not seek a remedial order within

(a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,

(i) that the injury for which the claimant seeks a remedial order had occurred,

(ii) that the injury was attributable to conduct of the defendant, and

(iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding

or

(b) 10 years after the claim arose,

whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

(2) The limitation period provided by subsection (1)(a) begins

...

(c) against a personal representative of a deceased person as a successor owner of a claim, at the earliest of the following times:

(i) when the deceased owner first acquired or ought to have acquired the knowledge prescribed in subsection (1)(a), if the deceased owner acquired the knowledge more than 2 years before the deceased owner’s death;

(ii) when the representative was appointed, if the representative had the knowledge prescribed in subsection (1)(a) at that time;

(iii) when the representative first acquired or ought to have acquired the knowledge prescribed in subsection (1)(a), if the representative acquired the knowledge after being appointed.

[5] Though there is a dispute as to the existence of the alleged loans, there is nothing to indicate that the deceased was not aware of the loans if indeed they were made. Thus, apart from any loans alleged to have been made within the last two years prior to the deceased’s death, she would have acquired the knowledge contemplated by subsection 3(1)(a) of the Limitations Act more than two years before her death. Therefore, pursuant to subsection 3(2)(c)(i), the limitation period with respect to any loans made prior to December 3, 2003 expired prior to the deceased’s death. Any loans alleged to have been made prior to December 3, 2003 are statute-barred.

[25] The change articulated in Tolofson v. Jensen 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022 was signalled in earlier Supreme Court of Canada cases. In Heuman (Next Friend of) v. Andrews, 2005 ABQB 832, 389 A.R. 182, Rowbotham J. (as she then was) reviewed in detail the development of the law in this regard. Justice Rowbotham made these comments at paras. 29 and 32:

In Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), (1988) 2 S.C.R. 256, the court criticized as “artificial” and “insupportable” the distinction between right and remedy, a distinction underpinning the traditional common law approach to statutory limitation provisions. In that case, La Forest J. held that a statutory provision that provided a complete defence to an action was substantive and could not be applied retroactively. In so holding, La Forest J. noted “the poverty of the attempted distinction between a liability and its enforcement” ...

Justice La Forest noted [in Tolofson] that Canadian courts had begun to shatter the notion that statutes of limitation are directed at the remedy and not the right. The Supreme Court had earlier decided the right of the defendant to be free from stale claims. (Martin v. Perrie, 1986 CanLII 73 (SCC), (1986) 1 S.C.R. 41)

[26] It is true that many of the cases since Tolofson in which statutes of limitation have been characterized have involved conflicts of laws, as was the case in Tolofson itself. Justice Rowbotham noted this in Heuman when she stated at para. 33 that “Since Tolofson, the Alberta Court of Appeal has consistently characterized statutes of limitation as substantive law in conflict of laws cases.”

[27] However, Justice Rowbotham was satisfied that the characterization of limitation provisions as substantive law was not limited to the conflicts realm. She reached these conclusions at paras. 27, 34 and 36:

As a result of the Supreme Court of Canada decision in [Tolofson] and cases decided in the past 10 years, it is my conclusion that a limitation provision is substantive, not procedural. The better view is that a limitation provision extinguishes not only the remedy but also the substantive right. This is so even where the issue is not one of the conflict of laws. ...

Ryan Heuman’s case does not involve the conflict of laws. However, in post-Tolofson non-conflict of laws cases, the Alberta Court of Appeal has evinced an inclination to characterize statutory limitation provisions, other than those directed at the filing and serving of documents, as substantive. ...

In my view where, as here, we are dealing with a limitation period in a limitations statute, the provision is substantive. This ought to be so whether or not the case involves the conflict of laws. I agree with the observation of Huband J.A. in Michalski v. Olson (1997), 1997 CanLII 2360 (MB CA), 123 Man. R. (2d) 101 (C.A.) that the notion that a limitation period bars the remedy rather than extinguishing a right “is an exercise of semantic gymnastics.”

[28] I agree both with Justice Rowbotham’s reasoning and with her conclusions. While there have been some more recent cases in which a limitation period has been treated as procedural, those cases have concerned time limits for matters that can be properly characterized as procedural, such as the filing of documents. For example, in Cook v. College of Physical Therapists of Alberta, 1998 ABCA 213, 212 A.R. 16, Conrad J.A. noted at para. 13 that “...there may be a distinction between limitation periods which relate to commencing an action, and limitation period which relate to the filing and serving of documents to initiate an appeal.” In arriving at this conclusion, Conrad J.A. referred to the following statement of La Forest J. in Tolofson:

Limitation periods included in the various rules of court, such as those for the filing of pleadings, are also undoubtedly matters of procedure.

[29] However, in this case, as in Heuman, we are concerned with a statutory limitation period, which limits not merely the time for filing documents, but the time for commencing an action. I am satisfied that the better, more modern view is that such a limitation is substantive, not procedural.

Johnston Estate (Re), 2017 BCSC 272 (CanLII)

[25] The applicant seeks an order directing that a registrar or master conduct an enquiry or assessment in relation to the amount, if any, that should be retained by the Estates and deducted from the share of the Estates otherwise payable to the beneficiary, Ronald William Johnston, on account of debts owing to the estate of William Johnston by Ronald William Johnston outstanding and owing on the death of William Johnston and to his estate.

[26] There is evidence that the testator, William Johnston, loaned a sum of money to the respondent approximately 12 years prior to his death and the debt remained outstanding at the date of his death in 2008. At paragraph 13 of the affidavit of Ronald William Johnston #1, he deposes as follows:

In or about 1996, William Leo Johnston loaned me approximately $70,000. I have not made a payment on the loan since approximately 2000. William Leo Johnston did not file a court action to collect on the loan. I have not waived my right to rely on the Limitation Act.

[27] There is no dispute that any action with respect to repayment of the loan is statute-barred by virtue of the provisions of the Limitation Act and was so at the date of death of William Johnston.

[28] The applicant relies on what is commonly referred to as the rule in Cherry v. Boultbee which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing his or her debt into account. The rule derives from the case of Cherry v. Boultbee (1839), 4 My. & Cr. 442. It is an equitable principle designed to ensure fairness. The purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than his or her fair share of the estate. In the case of Re: Akerman, Akerman v. Akerman, [1891] 3 Ch. 212, Kekewich J. stated:

A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back.

[29] The rule has been held to apply even where the debt is statute-barred: see Re: Akerman.

[30] The applicant submits that the rule continues to apply in Canada and relies on the decision of the Supreme Court of Canada in Canada Trust Company v. Lloyd et al, 1968 CanLII 95 (SCC), [1968] S.C.R. 300. In that case, the Supreme Court applied the rule in Cherry v. Boultbee in finding that the contribution of three directors who had improperly withdrawn funds from the company some 43 years earlier, had to be taken into account in the distribution of the residue by the receiver. The court noted that the situation was analogous to that of a “legatee who must bring into account even a statute barred debt before he can claim a legacy left to him in the testator’s will”.

[31] The applicant also relies on a more recent decision of the Ontario Court of Appeal, Olympia & York Developments Ltd. v. Royal Trust Co. (1993), 1993 CanLII 8578 (ON CA), 103 D.L.R. (4th) 129, where the court confirmed that the rule in Cherry v. Boultbee has been accepted in Canadian decisions and, where appropriate, applied.

[32] The respondent submits that recent developments in Canadian jurisprudence with respect to limitation periods has resulted in a change in the application of the rule in Cherry v. Boultbee where the debt is statute-barred. The respondent submits that the Supreme Court of Canada in Tolofson v. Tolofson, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, signalled a change in approach to limitation provisions and a move towards the notion that limitation provisions are substantive rather than procedural. She relies on a recent decision of the Alberta Court of Queen’s Bench , Moody Estate, Re, 2011 ABQB 222, in which Clark J. concluded that the expiry of a substantive statutory limitation period extinguishes not just the remedy, but also the underlying right. On the basis of this conclusion, he reasoned that the application of the rule in Cherry v. Boultbee “beyond the expiration of a limitation period no longer has a place in Canadian law”. He noted at para. 30 that:

Once the limitation period in respect of a debt owed to a deceased person has expired, the right to collect the debt is extinguished. The debt is no longer collectible and cannot be taken into account in making distribution to the debtor beneficiary.

[33] Clark J. referred to the decision of the Yukon Territory Court of Appeal in the case of Leeper Estate v. Leeper, [1996] Y.J. No. 6. In that case, the Court of Appeal referred to the rule in Cherry v. Boultbee and the case of Re: Akerman and noted at para. 29 that:

Pursuant to those authorities the fact that the monies repayable by the appellant to his father were statute barred under section 2(1)(f) of the Limitation of Actions Act did not preclude the administratrix of the estate of Mr. Leeper (represented in this litigation by the respondent) from applying the rule in Cherry v. Boultbee.

[34] He distinguished the decision on the basis that the court accepted the rule without consideration of the law with respect to limitation periods and specifically without consideration of the change in the law as set forth in Tolofson.

[35] Clark J. concluded that:

I am satisfied that the application of Cherry v. Boultbee to statute-barred debts is anomalous, given the changed approach to limitation periods. In my view, abandoning such application is sensible, in keeping with the policy rationale underlying limitation periods and consonant with current jurisprudence.

[36] With all due respect to Clark J., I cannot agree with either his reasoning or his conclusion. In my view, he begins his analysis from the premise that the “rule permits an executor to recoup the amount owing, even though the deceased would have been unable to do so.” In my view, that is not an accurate description of the application of the rule. The rule in Cherry v. Boultbee does not confer on the estate any right to recoup the amount owing but rather operates to ensure fairness in the distribution of an estate, recognizing that the relationship between a testator and his or her beneficiaries is typically not at arm’s length. The fundamental purpose of the rule is to ensure that beneficiaries are treated fairly and it embodies the principal that he who seeks equity must do equity. As the court noted in Re: Akerman, nothing is being retained by the representative and nothing is being set off but rather, the contributor is paid by what he is holding in his own hand. The court in Re: Goy & Co Ltd. [1900] 2 Ch. 149, also noted that the claimant has in his own hands that which is applicable to the payment and should pay himself out of that. The question of whether the testator or the estate can recover the debt or whether the debt is statute barred is therefore largely irrelevant to the application of the rule. In my view, the change in approach to limitation provisions by the Supreme Court of Canada in Tolofson does not affect the application of the rule in Cherry v. Boultbee.

[37] The decision of the Yukon Territory Court of Appeal in Leeper Estate makes it clear that the rule in Cherry v. Boultbee continues to apply in Canada. That conclusion is not, in my view, diminished by the fact that the Court did not address the change in approach to limitation provisions in Tolofson because it was unnecessary for them to do so.

Hawley v. Bapoo, 2005 CanLII 36451 (ON SC)

[54] The Charter is part of Canada's Constitution, our supreme law. One of its essential functions is to demarcate the relationship between the individual and the state. The effective recognition and enforcement of Charter rights requires that individuals have unencumbered access to the courts. As Lamer J. noted in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, at p. 196 S.C.R.:

When a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur. [page677]

There is no question that the legislature and the courts are competent to enact rules of procedure governing Charter litigation. As Professors Hogg and Monahan note in their text Liability of the Crown:

The general rule ... is that constitutional claimants are not liberated from the rules of practice and procedure of the Court in which the claim is made, despite the fact that failure to comply with the rules will often defeat proceedings. [See Note 16 at the end of the document]

However, where there is any doubt about the restrictive effect of those rules on Charter litigation, it should be resolved in favour of permitting the would be Charter litigant to bring their claim to a competent court. Applying these principles to s. 109(1)2 of the CJA, I must conclude that no notice of constitutional question is required where a remedy under s. 24(1) of the Charter is sought for reasons other than an act or omission of government. Acts or omissions of individual government agents are not necessarily the acts or omissions of the government under whose authority they are putatively acting. Thus, the failure of the officers to serve a notice of constitutional question does not bar them from seeking the constitutional remedies they seek as against Ms. Mackett and Mr. Richer.