Limitation Periods and Enforcing Orders of the Court
The recent decision of the Ontario Superior Court of Justice in Gregg v. Thurston, 2023 ONSC 5944, dealt with the applicability of a statutory limitation period to an order of the court.
Overview
In this case, Sandra Gregg and Lloyd Thurston entered into an agreement during their engagement to purchase a vacant property that would list both individuals on title. Following their separation in 1973, and during litigation related to marital property, Ms. Gregg discovered that the deed of the property was registered in Mr. Thurston’s name alone.
They entered into a consent judgment (“Judgment”) in 1979 wherein the property was to be sold and the proceeds divided as determined by a master. Despite efforts by Ms. Gregg to implement the Judgment in 1988 and 1990, the property was never sold. In 2021, Mr. Thurston reinitiated the discussion and Ms. Gregg brought this application to implement the Judgment.
Analysis
In determining whether the application was barred by a statutory limitation period, Justice Muszynski considered current limitation legislation and limitation legislation in force at the time of the Judgment. Justice Muszynski notes that current legislation does not prescribe a limitation period for proceedings to enforce an order of a court, but that section 45(1) of the Limitations Act, 1970, in force at the time of the Judgment, prescribed a 20-year limitation period for “an action upon a judgment”.
The Supreme Court of Canada has confirmed that where there is ambiguity with respect to the application of a limitation period, the plaintiff should be given the benefit of the doubt.[1] Justice Muszynski found that it was not clear whether the Judgment is subject to a statutory limitation period. Applying the Supreme Court of Canada’s reasoning, Justice Muszynski found that there is thus no limitation period that bars this application.
The Judgment directs the property to be sold, the proceeds to be paid into court and divided among the parties according to their rights as determined by a master. Seeing as there is no final determination of the rights of the parties, the Judgment is not capable of being “acted upon” by traditional enforcement mechanisms.
The parties did not locate any relevant caselaw related to a “judgment” within the context of section 45(1) of the Limitations Act, 1970. Justice Muszynski states that, in this case, the Judgment “is final in the sense that it compels the sale of the property, but incomplete in the sense that it does not determine the outcome of the litigation or create a fixed liability owing from one spouse to the other.”
Justice Muszynski found that there is no applicable limitation period because no other statutory limitation period was raised that might bar the application and because there is ambiguity as to whether the limitation period in the Limitations Act, 1970 applies to the Judgment.
Conclusion
The application is not barred by a limitation period and may proceed.
Takeaways
The current limitation legislation does not prescribe a limitation period for proceedings to enforce an order of a court. Further, where there is ambiguity as to whether a limitation period is applicable, the court will give the plaintiff the benefit of the doubt in favour of allowing an application to proceed.
[1] Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] 1 S.C.R. 275, at p. 280, per Estey J.; Dundas v. Zurich Canada, 2012 ONCA 181, 109 O.R. (3d) 521, at para. 40, leave to appeal refused [2012] S.C.C.A. No. 236.