Tag Archives: limitations

The End of the Suspension of Legal Deadlines in Ontario

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In response to the COVID-19 pandemic, the Government of Ontario temporarily suspended most statutory and regulatory limitation periods.  This applied to a lot of legal deadlines, chief among them Ontario’s “basic” limitation period which states that most lawsuits have to be started within two (2) years. 

The suspension of most limitation periods went into effect on 16 March 2020.  The Government of Ontario ended the suspension last month, and the suspended time periods resumed running on 14 September 2020.  If we say that 13 September 2020 (which was a Sunday) was the last day of the suspension period, that means the suspension period ended up being 182 days long. 

(I keep saying “most” limitation periods, because there were some legal deadlines which were not suspended by the government, such as deadlines created by a court order.  Other deadlines were suspended for less than the entire duration of the suspension, such as deadlines under the Construction Act, which were suspended for only 31 days.)

Protect Your Legal Interests

If you are sitting on a possible legal claim, do not fall into the trap of thinking you have an extra 182 days beginning on 14 September 2020 within which to commence it.  If your limitation period would have expired after 16 March 2020 but before 14 September 2020, then you only have as much time after 14 September 2020 as you would have had after 16 March 2020. 

So if your limitation period would have, but for the suspension, expired on 29 May 2020 (seventy-four days after the beginning of the suspension), the limitation period will now expire on 27 November 2020 (seventy-four days after the end of the suspension).  I expect this will be an easy mistake for litigants and their counsel to make, so please be alive to this issue.  There will be people who think that they have 182 days from 14 September 2020 when they do not.  It is easy to anticipate that, over the next six months or so, some folks are going to miss deadlines. 

Also bear in mind that not all legal claims in Ontario are subject to the “basic” limitation period of two years.  There are exceptions to the basic limitation period.  In some situations, the deadline to start a lawsuit is shortened by the terms of a contract (such as most insurance contracts), or by a statutory requirement to give notice (such as in the Municipal Act or in the Libel and Slander Act, for certain types of claims).  Some types of legal proceedings are not statute-barred at all. 

If you think you might have a legal claim, protect your interests.  DO NOT rely on this blog, which is simply an informative summary and does not constitute legal advice.  Consult with a lawyer. 

Can You Daisy-Chain Your Way Around a Limitation Deadline?

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The short answer is “no”.

The long answer is contained in this fascinating case from the Ontario Court of Appeal called H.M.B. Holdings Limited v The Attorney General of Antigua and Barbuda.

Background

If you get a civil court judgment against someone in another country, you can (in most cases) have that judgment registered in Canada.  You would want to do this if the party against whom you have a foreign civil judgment owns assets in Canada which you could potentially seize in satisfaction of your judgment. 

If you have a judgment in a country which has a reciprocal enforcement treaty with Canada (such as the United Kingdom), then you can simply apply at the Court office to have the foreign judgment registered as a judgment of the court in Canada.

If the country in which you have your judgment does not have a treaty with Canada, then you have to start a traditional lawsuit in the Canadian court in which you ask the court to grant a judgment recognising and incorporating the foreign judgment.  The deadline to bring this lawsuit is governed by the limitations law of whatever province you are commencing the lawsuit in. 

Ontario, via British Columbia?

H.M.B. Holdings Limited had a judgment from an Antiguan court against the Government of Antigua and Barbuda for millions of dollars.  H.M.B. Holdings must have believed that the Government of Antigua and Barbuda had assets in Ontario, because it wanted to have its Antiguan court judgment recognised in Ontario. 

The problem for H.M.B. Holdings was that the two-year limitation period to commence a lawsuit in Ontario had already expired.  (It had been more than two (2) years since it had obtained the court judgment from Antigua and Barbuda.)

However, the limitation deadlines are not the same across the country.  The deadline for starting a lawsuit in British Columbia to recognise a foreign judgment is six (6) years, not two (2).  A law in Ontario called the Reciprocal Enforcement of Judgments Act states that the courts in Ontario have to recognise court judgments obtained in other Canadian provinces.

H.M.B. Holdings decided to seek a court judgment in British Columbia, where the limitation deadline had not yet expired and then, within two (2) years of obtaining the British Columbian judgment, bring a lawsuit in Ontario to recognise the British Columbian judgment. 

Too clever by half?  Two (2) of the three (3) judges presiding at the Ontario Court of Appeal thought so.

When H.M.B. Holdings sued to have the British Columbia judgment registered in Ontario, the court dismissed the action.  H.M.B. Holdings appealed to the Court of Appeal. 

The “Original Judgment”

One of the legal issues considered by the Court was the meaning of the term “original judgment” in the Reciprocal Enforcement of Judgments Act.  The Act prohibits registration of a judgment where the judgment debtor would have a good defence if an action were brought on the “original judgment” [subsection 3(g)].  The majority held that “original judgment” referred to the Antiguan judgment.  Since Antigua and Barbuda would have valid limitations defence to an action to register the Antiguan judgment, the Act prohibits the registration of that “original judgment”, even if it takes a pit stop in Vancouver.

In dissent, Justice Nordheimer expressed his view that the term “original judgment” in the Act had to mean the specific judgment which the plaintiff sought to have registered which, in this case, was the British Columbian judgment. 

One can easily see both sides of this.  One could say that a litigant should not be allowed to do through the back door what it could not have done through the front door.  At the same time, one could equally say that judgment debtors should not be able to escape having to pay the judgment against them by having the enforcement proceedings defeated on procedural, rather than substantive, grounds.  There is also an argument that creative counsel should be rewarded, not punished, for using all of the legal mechanisms available to them in pursuit of justice for their client. 

UPDATE: We will have the opportunity to see this dispute go the next level, because the Supreme Court of Canada has granted H.M.B. Holdings Limited leave to appeal this decision. It will be fascinating to see how the Supreme Court deals with this question which divided the Ontario Court of Appeal.