Effect (Expiry of Limitation Period)

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.