Enforcement Process Limitations: Time Period for Commencing Judgment Enforcement Procedures

[7]  I am not aware of any rule or statutory provision that extends the enforceability of an original order or judgment in a carte blanche manner as requested.  Indeed, there is no limitation period that applies to judgments.  In this regard, I refer to section 16(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Limitations Act”) which reads as follows:

No limitation period

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

(a) …. ;

(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;

….

Other common law provinces retained a laches-saving provision

[51] Ontario was one of the last provinces to adopt a limitations statute that applies to civil actions generally. At the time the Limitations Act, 2002 was enacted, every other common law province where the limitations legislation governed all civil actions contained a laches-saving provision, expressly preserving the application of equitable doctrines, notwithstanding that the applicable limitation period had not expired.⁵ The drafters of the Limitations Act, 2002 would have been familiar with this legislation and the widespread retention of a laches-saving provision in the context of generally applicable limitations statutes. A number of these provinces have recently amended their limitations legislation to adopt a uniform limitation period applying to all claims, similar to the Limitations Act, 2002. With the exception of Nova Scotia, these amended acts continue to retain a laches-saving provision.⁶ The absence of such a provision in Ontario is therefore noteworthy.

[52] The legislature's removal of the laches-saving provision overrules any suggestion in Perry that laches might bar the commencement of a proceeding to pursue an unexpired legal claim to which the basic limitation period prescribed by the Limitations Act, 2002 applies. Indeed, even in the presence of such a provision, this court has held that, "[s]o long as the action was instituted within the limitation period, the question of laches does not arise": F. (L.) v. F. (J.R.), 2001 CanLII 294 (ON CA), [2001] O.J. No. 1720, 144 O.A.C. 372 (C.A.), at para. 6.

Comprehensive nature of the Limitations Act, 2002

[53] The deletion of the laches-saving provision from the Limitations Act, 2002 coincided with a major reform of the existing limitations law in Ontario and a shift toward a more comprehensive scheme that aims to provide certainty and clarity to litigants.

[54] As I note above, the old Limitations Act applied only to a closed list of enumerated causes of action and not to civil actions in general. Equitable causes of action, with few exceptions, were outside of its scope. The Limitations Act, 2002 "represents a revised, comprehensive approach to the limitation of actions": Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, at para. 8. In Joseph, this court concluded that the common law doctrine of special circumstances had no application under the new, comprehensive Limitations Act, 2002. That doctrine had allowed a court to add or substitute a party or to add a cause of action after the expiry of a limitation period where special circumstances existed, unless the change would cause prejudice that could not be compensated for with either costs or an adjournment. Permitting a defendant to invoke the equitable doctrine of laches because a legal claim has an "equitable flavour" would be inconsistent with the comprehensive approach to the limitation of actions represented by the Limitations Act, 2002.

[55] Permitting a defendant to rely on the defence of laches where the claim is a legal claim and subject to and within the basic limitation period prescribed under the Limitations Act, 2002 would also be counter to the purpose of that Act of promoting certainty and clarity in the law of limitation periods: msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd. (2013), 117 O.R. (3d) 81, [2013] O.J. No. 4432, 2013 ONCA 550, at para. 61.

[56] Given the comprehensive approach of, and absence of a laches-saving provision in, the Limitations Act, 2002, together with the historic restriction of laches to claims for equitable relief, I am satisfied that a second party insurer cannot invoke the doctrine of laches as a defence to a first party insurer's legal claim for indemnity.

Debts not released by order of discharge

178 (1) An order of discharge does not release the bankrupt from

(a) any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a court in respect of an offence, or any debt arising out of a recognizance or bail;

(a.1) any award of damages by a court in civil proceedings in respect of

(i) bodily harm intentionally inflicted, or sexual assault, or

(ii) wrongful death resulting therefrom;

(b) any debt or liability for alimony or alimentary pension;

(c) any debt or liability arising under a judicial decision establishing affiliation or respecting support or maintenance, or under an agreement for maintenance and support of a spouse, former spouse, former common-law partner or child living apart from the bankrupt;

(d) any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others;

(e) any debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation, other than a debt or liability that arises from an equity claim;

(f) liability for the dividend that a creditor would have been entitled to receive on any provable claim not disclosed to the trustee, unless the creditor had notice or knowledge of the bankruptcy and failed to take reasonable action to prove his claim;

(g) any debt or obligation in respect of a loan made under the Canada Student Loans Act, the Canada Student Financial Assistance Act or any enactment of a province that provides for loans or guarantees of loans to students where the date of bankruptcy of the bankrupt occurred

(i) before the date on which the bankrupt ceased to be a full- or part-time student, as the case may be, under the applicable Act or enactment, or

(ii) within seven years after the date on which the bankrupt ceased to be a full- or part-time student;

(g.1) any debt or obligation in respect of a loan made under the Apprentice Loans Act where the date of bankruptcy of the bankrupt occurred

(i) before the date on which the bankrupt ceased, under that Act, to be an eligible apprentice within the meaning of that Act, or

(ii) within seven years after the date on which the bankrupt ceased to be an eligible apprentice; or

(h) any debt for interest owed in relation to an amount referred to in any of paragraphs (a) to (g.1).

Court may order non-application of subsection (1)

(1.1) At any time after five years after the day on which a bankrupt who has a debt referred to in paragraph (1)(g) or (g.1) ceases to be a full- or part-time student or an eligible apprentice, as the case may be, under the applicable Act or enactment, the court may, on application, order that subsection (1) does not apply to the debt if the court is satisfied that

(a) the bankrupt has acted in good faith in connection with the bankrupt’s liabilities under the debt; and

(b) the bankrupt has and will continue to experience financial difficulty to such an extent that the bankrupt will be unable to pay the debt.

Claims released

(2) Subject to subsection (1), an order of discharge releases the bankrupt from all claims provable in bankruptcy.