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Do provincial tolling statutes/limitations acts apply to non-residents?

Trials & Tribulations
|Written By Antonin I. Pribetic
Do provincial tolling statutes/limitations acts apply to non-residents?

Conflict of laws. The name itself conjures fascination in some, and dread in others.

For litigators, it is eponymous with internecine, high-stakes battles fought in dimly lit courtrooms across the country over the proverbial “home-court advantage.” Some may have already heard about Justice Robert Sharpe’s reformulation of the “real and substantial connection” test for assuming jurisdiction over out-of-province defendants in Van Breda v. Village Resorts Ltd., (see my blog post “The Lernaean Hydra”).

Meanwhile, many anxiously await the Supreme Court of Canada’s pronouncement on the applicable limitation period to enforce a foreign arbitral award in Yugraneft Corp. v. Rexx Management Corp.

One question that has flown under the judicial radar is: Do tolling statutes/limitations acts apply to non-residents?

The knee-jerk response will likely be that the question is rhetorical; limitation periods apply to actions to enforce foreign judgments or foreign arbitral awards.

However, unlike most other Canadian provincial limitation statutes (e.g. s. 23 of Ontario’s Limitations Act, 2002, Sch. B), the Alberta Limitations Act does not distinguish between substantive and procedural law and reads as follows:

“Conflict of laws

12(1) The limitations law of Alberta applies to any proceeding commenced or sought to be commenced in Alberta in which a claimant seeks a remedial order.

(2) Notwithstanding subsection (1), where a proceeding referred to in subsection (1) would be determined in accordance with the law of another jurisdiction if it were to proceed, and the limitations law of that jurisdiction provides a shorter limitation period than the limitation period provided by the law of Alberta, the shorter limitation period applies.”

Others will point to the 2004 Ontario Court of Appeal decision in Lax v. Lax, which dealt with the issue of the applicable limitation period to enforce a foreign judgment in Ontario. Recall that under s. 48 of the old limitations act, “If a person against whom a cause of action mentioned in s. 45 or 46 accrues is at such time out of Ontario, the person entitled to the cause of action may bring the action within such times as are before limited after the return of the absent person to Ontario.” [emphasis added].

Justice Kathryn Feldman considered the effect of s. 48 and held:

“However, there is one further statutory provision that forms an important part of the scheme, particularly as it applies to foreign judgments. The effect of s. 48, quoted above, in the context of enforcement of foreign judgments, is that the six-year limitation period does not commence until the judgment debtor, who was not in Ontario on the date of the judgment, returns to Ontario. The purpose of enforcing a foreign judgment within Ontario is to execute on assets of the judgment debtor that are within the province. When a judgment debtor of a foreign action comes into the province, if the person brings assets, it is only at that time that a judgment creditor will want to seek to enforce the foreign judgment here. Where the foreign judgment was obtained against a person not in Ontario, s. 48 postpones the commencement of the limitation period for enforcing that judgment in Ontario against the judgment debtor until he or she returns here.

“In summary, a foreign judgment cannot be enforced in Ontario except by first suing on the judgment to obtain a domestic judgment against the debtor. That action must be brought within six years from when the cause of action arose, which is the date of the foreign judgment. However, if the debtor was not in Ontario on the date of the judgment, then the six years does not commence until the debtor returns to Ontario. [3] Once the domestic judgment is obtained, it can be enforced in the usual way and is subject to the twenty-year limitation period.”

Did you click on footnote [3] above? What, you don’t read footnotes in judgments? Here’s why you should:

“No issue was raised on the appeal whether s. 48 applies only to a person who returns to Ontario after leaving Ontario or whether it also applies to a person who comes to Ontario for the first time after the cause of action arose.”

In fact, the above issue was resolved in 1958 in Clemens v. Brown and International Nickel Co. of Canada Ltd., an Ontario case that involved a plaintiff who sued in 1956 to recover certain shares allegedly converted and invalidly endorsed to the defendant in 1943.

The plaintiff, however, was unaware of the transfer and delivery of the shares until 1950. The defendant pleaded s. 51 of the 1950 Limitations Act (the predecessor to s.48 of the penultimate Ontario Limitations Act). Justice Walter Schroeder, speaking for the unanimous Court of Appeal held that: “The words ‘after the return of the absent person to Ontario,’ suggest that this section does not apply to a defendant who was not ordinarily resident in Ontario when the cause of action arose.”

The 2002 Limitations Act no longer contains wording similar to s. 48 of the previous act. However, in addition to the discoverability principle codified in s. 5 and the transition provisions in s. 24(6), the new act also states that:

“16. (1) There is no limitation period in respect of . . .

(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court . . .

(d) a proceeding to enforce an award in an arbitration to which the Arbitration Act, 1991 applies” [emphasis added].

Implications

The view that provincial tolling statutes should not apply to non-resident defendants comports with established conflict-of-laws principles of personal jurisdiction, comity, reciprocity, and the constitutional limits of extraterritorial application of Canadian law on foreign parties.

The Supreme Court of Canada in Yugraneft likely will not comment in obiter on whether foreign judgments are to be treated on the same juridical basis as foreign arbitral awards for limitations purposes.

However, since a limitations defence is another available defence to the enforcement of a foreign judgment, it is important for plaintiff’s counsel to determine whether or not the defendant resided in Ontario when the cause of action arose (i.e. when the foreign judgment became final and conclusive), and if the defendant was a non-resident, to also plead the denial in reply.

Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog thetrialwarrior.com.

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