Don’t Procrastinate!: 2 Year Limitation Period Applies to the Enforcement of Foreign Judgments in Ontario

In a very well written and incisive decision released earlier this year, the Court of Appeal for Ontario finally settled the issue of what limitation period applies to the enforcement of foreign judgments in Ontario. InIndependence Plaza 1 Associates, L.L.C. v. Figlioni 2017 ONCA 44 (CanLII) Justice Strathy C.J.O. writing for the Court, answered the two key questions that have puzzled lawyers who handle cross-border enforcement cases for years:

a.   What limitation period applies to a proceeding on a foreign judgment in Ontario?

b.   When does that limitation period begin to run?

The answers?

  • A two-year limitation period applies to a proceeding on a foreign judgment, and
  • The limitation period begins to run, at the earliest, when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision. The time maybe longer if the claim was not “discovered” within the meaning of section 5 of the limitations Act, 2002, until a date later than the appeal decision.

Background
The case arose out of a January 24, 2013 judgment of the New Jersey Superior Court for the payment of  US $115,248 which was appealed unsuccessfully on July 17, 2014.

On May 1, 2015 an application was launched in the Ontario Superior Court of Justice to enforce the judgment in Ontario.  Hence the application was launched more than 2 years after the New Jersey Judgment was rendered but less than 2 years after the unsuccessful appeal.

At first instance, the Judgment Defendant argued that the proceeding was statute-barred pursuant to s. 4 of the Limitations Act, 2002.  This was based on more than 2 years having passed since the date of the New Jersey judgment.  The Applications judge did not agree and granted judgment in favour of the judgment creditor.

Appeal

On the Appeal the Court made it very clear that the starting point for the analysis of what limitation period applies is the Limitations Act 2002, which the Court indicated is “…a comprehensive and exhaustive scheme for dealing with limitation periods…”

In applying the Limitations Act 2002, the Court rejected the argument that s. 16(1)(b) of the Act, which deals with limited situations where there is no limitation period.  This argument had previously succeeded at the lower court level in other cases. Instead, the Court held that sections 4 and 5 of the Act apply when dealing with the enforcement of foreign judgments in Ontario:

Basic Limitation Period
4.  Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5.  (1)  A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption
(2)  A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

In finding that s. 5 applies in situations involving the enforcement of foreign judgments the Court commented as follows:

[72]   The words “injury, loss or damage” in s. 5(1) can reasonably refer to the debt obligation created by a foreign judgment and owed by the foreign judgment debtor to the creditor. The “act or omission” can reasonably refer to the debtor’s failure to discharge the obligation once it became final. Viewed in this light, s. 5(1) can reasonably be viewed as applying to a proceeding on a foreign judgment.

[83]   In the present case, I conclude that the respondent’s claim based on the New Jersey judgment was discover-able on July 17, 2014, the date the appeal was dismissed in New Jersey. The respondent would not have reasonably known that a proceeding in Ontario would be an appropriate means to seek to remedy its loss until that date. Thus, the limitation period for the respondent to commence its proceeding on the New Jersey judgment began on that date. The respondent brought the proceeding on May 1, 2015, within the applicable two-year limitation period. Hence, the proceeding was not time-barred.

Comment
It is now clear in Ontario that the 2 year standard limitation period applies to the enforcement of foreign judgments.  A pending appeal or other specific circumstances may result in the period running from a date after 2 years from the rendering of the foreign judgment as a result of the application of the “discoverability” provisions in s. 5.  The best course of action when obtaining a foreign judgment to be enforced in Ontario (or anywhere in Canada) is to contact competent Canadian counsel immediately to assess the options:  Don’t procrastinate!

Jon-David Giacomelli

Jon-David Giacomelli is a Canadian lawyer and an internationally known leader practicing in the area of the recognition and enforcement of foreign judgments and arbitral awards in Canada.

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