Relief From Forfeiture

1. General
2. Test for CJA Relief From Forfeiture
3. History of Relief From Forfeiture
4. Application of CJA Relief From Forfeiture to Statutory Forfeitures

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1. General

'Relief from forfeiture' is a general statutory form of relief, and also is granted in specific areas of law such as landlord & tenant [Commercial Tenancies Act, s.20] and insurance law [Insurance Act, s.129]. When granted by a court, it is a legal excuse from the strict application of penalties or forfeitures which would otherwise operate against a party.

The general statutory form is under s.98 of the Courts of Justice Act (here called "CJA relief from forfeiture"), which reads:

A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.

2. Test for CJA Relief From Forfeiture

In Dube v. RBC Life Insurance Company (Ont CA, 2015) the court sets out the test for relief from forfeiture under the Courts of Justice Act:

A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.

Here the relief sought was with respect to a 30-day timeline for filing a Notice of Claim under an LTD group policy. The court characterized the test as follows:

The relief under s. 98 is both equitable and discretionary. The test for relief is well established. It has three components. The court must consider:

- the conduct of the insured applicant

- the gravity of the breach

- the disparity between the value of the property forfeited and the damage caused by the breach, see: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490.

3. History of Relief From Forfeiture

In Poplar Point First Nation Development Corporation v. Thunder Bay (City) (Ont CA, 2016) the Court of Appeal sets out the history of the development of today's CJA relief from forfeiture:

[38] The origin of the court’s ability to grant relief from forfeitures and penalties was in the equitable jurisdiction of the Chancery Courts. Its scope was limited, available only for penalty clauses. It was also restricted to contracts concerning the transfer of proprietary or possessory rights: J. McGee, Snell’s Equity 3rd ed. (London: Sweet & Maxwell 2010), at para. 13-015.

[39] With the fusion of the courts of equity and common law (commencing in 1873 with the Administration of Justice Act, S.O. 1873, c. 8 and completed in 1881 with the Ontario Judicature Act, 1881, S.O. 1881, c. 5) the ability to grant relief from forfeiture was no longer restricted to the Chancery Courts. Section 16 of the Ontario Judicature Act, 1881 provided that “in every civil cause or matter commenced in the High Court of Justice” where equitable relief was claimed, the court was empowered to grant “such and the same relief as ought to have been given by the Court of Chancery… before the passing of this Act."

[40] Specific statutory authority for granting relief from penalties and forfeitures appeared first in the Ontario Judicature Act, following an amendment to that Act in 1886: S.O. 1886, c. 16, s. 38(b). Relief from penalties and forfeitures was included as “a rule of law” for “every civil cause or matter commenced in the High Court of Justice.” This new statutory power was quickly interpreted as having expanded the circumstances in which relief from forfeiture could be granted. See, for example, Townsend v. Toronto, Hamilton and Buffalo Railway Company (1898), 28 O.R. 195, where Meredith C.J. noted that it was “unnecessary to consider what, if any, limit was to be placed upon” the “wide general language of [the] provision” (at p. 199).

[41] The statutory provision was re-enacted in the various Judicature Acts, until the last was repealed and replaced by the Courts of Justice Act, 1984, S.O. 1984, c. 11, where it was placed under Part VII (originally as s. 111, and now s. 98).

4. Application of CJA Relief From Forfeiture to Statutory Forfeitures

(a) Application of Relief From Forfeiture to Statutory Forfeitures

As statutory protections evolve more and more, the issue arises as to their range and application. In this case Poplar Point First Nation Development Corporation v. Thunder Bay (City) (Ont CA, 2016) the issue arose as to whether the 'relief from forfeiture' provisions of s.98 of the Courts of Justice Act would apply against tax arrears sale under the Municipal Act. The court held that it would, absent any statutory intent otherwise:

[55] The question is not whether there is a statutory scheme, but whether the language and scheme of the statute would exclude relief from forfeiture under s. 98. This is now firmly the approach taken in the case of forfeitures arising under insurance contracts governed by the Insurance Act. Relief from forfeiture under s. 98 is available where the insured’s breach constitutes imperfect compliance with a policy term and the specific relief from forfeiture provisions under the Insurance Act do not apply: Kozel v. Personal Insurance Co., 2014 ONCA 130 (CanLII), 119 O.R. (3d) 55. As LaForme J.A. noted in Kozel at para. 58:

…in the absence of clear legislative intent indicating that s. 129 of the Insurance Act applies to the exclusion of s. 98 of the CJA, I would hold that the latter provision is available as an avenue of relief for contracts governed by the Insurance Act.

[56] See also Lavoie v. T.A. McGill Mortgage Services Inc., 2014 ONCA 257 (CanLII), 119 O.R. (3d) 651, where this court upheld the ruling in Kozel that relief against forfeiture under s. 98 may be available, however the facts in Lavoie were not amenable to such relief.

[57] In my view, this is the approach that should govern in the present case. Section 98 is a statutory provision expressed in broad and general terms to be available in civil proceedings. Where a forfeiture occurs under a statutory scheme, the scheme should be examined in order to determine whether by necessary implication relief from forfeiture under s. 98 would be precluded.

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[64] As such, I would find that there is no absolute bar to granting relief from forfeiture in relation to the forfeiture in this case simply because it occurs in the context of a statutory scheme. The issue is one of statutory interpretation. The question is whether relief from forfeiture is expressly or implicitly precluded.

(b) Exception for Penalties Under Statute

. Poplar Point First Nation Development Corporation v. Thunder Bay (City)

In Poplar Point First Nation Development Corporation v. Thunder Bay (City) (Ont CA, 2016) the result would not have been the same were the statututory provision a penalty, which comes too close to the criminal legislative function, where this primarily civil provision will not enter into:

[45] The second line of cases involves true penalties for breach of a statute, where it is clear that civil relief from forfeiture should not in any event be available.

The courts don't appear to have addressed the inconsistency in CJA s.98 's mention of "penalties", and this exception.

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Cases to be integrated