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Limitations Act - Acknowledgement [s.13]. 1250140 Ontario Inc. v. Bader
In 1250140 Ontario Inc. v. Bader (Ont CA, 2022) the Court of Appeal consider an issue of 'acknowledgement' (which can re-start a limitation period) under the Real Property Limitations Act (RPLA):[10] The motion judge observed that neither party disputed that s. 23(1) of the RPLA applied. The section provides that a claim falling within the ambit of the RPLA expires after 10 years:23(1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given. [Emphasis added.] [11] The motion judge found that Ms. Bader acknowledged the debt in her affidavit in the foreclosure proceedings, thereby extending the limitation under s. 23 of the RPLA. As he said in his reasons, “[t]his is not just any old acknowledgment in writing. It is sworn testimony before the court in a proceeding in which both the defendant and the plaintiff were named parties.”
Discussion
[12] The appellant submits that s. 23 of the RPLA did not apply in the circumstances of this case because, by the time 125 commenced its 2019 action, the property had been sold. The appellant submits that s. 23 applies only to actions for in rem remedies. In this case, because the property had already been sold, it was a proceeding for an in personam remedy. As such, the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B applied and the action was time barred. We do not accept this submission.
[13] First, this submission was not made before the motion judge. Ms. Bader did not raise this issue in her Statement of Defence. Instead, she simply took the position that the 10-year limitation had expired. As discussed below, she disputed that she had acknowledged the debt in the interim. Moreover, Ms. Bader’s Notice of Appeal failed to raise this issue. It was first raised by new counsel (Mr. Whiteley) when he filed a Supplementary Notice of Appeal.
[14] Raising a new issue for the first time on appeal undermines the important interest of finality in judicial proceedings. It leads to inefficiencies in the adjudicative process. It places this court in the role of a first instance decision-maker, rather than a reviewing court. No explanation was provided for this change in position on appeal. In these circumstances, an appellate court should be reluctant to entertain the new submission: see Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74, at para. 46.
[15] Nonetheless, we do not accept that s. 23 of the RPLA only applies when the mortgagor is still in the possession of the property or when the proceeds of the realization of the property have yet to be distributed. Section 23 makes no such distinction. No cases directly support Ms. Bader’s position.
[16] Put simply, s. 23 of the RPLA governs actions about claims to real property: see Equitable Trust v. Marsig, 2012 ONCA 235, 109 O.R. (3d) 561, at para. 27. When Ms. Bader assumed her debt to 125, it was secured by a mortgage on the property. This was not a situation where the land was incidental to an action based in negligence, breach of contract, breach of fiduciary duty, or some other basis of liability: Zabanah v. Capital Direct Lending Corp., 2014 ONCA 872, 123 O.R. (3d) 350. Rather, the claim for debt was based on a covenant in the mortgage, and the land, as security for the debt, was critical to that claim.
[17] Ms. Bader has provided no support for the contention that a mortgagee becomes disentitled to the longer limitation period in the RPLA when the property in question has been disposed of in the meantime. While the land may be out of reach for enforcement purposes, there is no principled reason why a mortgagee should be prevented from pursuing an action for any money still owing, as long as the claim is commenced within the limitation period set out in the RPLA. The prospect of a shifting limitation period, tied to the disposition of the property in issue, would only foster uncertainty in the application of the RPLA. . 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi
In 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi (Div Ct, 2021) the Divisional Court considers what constitutes an acknowledgement for the purposes of s.13 the Limitations Act, 2002:[34] First, I do not accept that an effective acknowledgment requires that there be no dispute as to the exact amount owing. Dr. Ghotbi’s counsel cited two cases in support of this purported requirement: Environmental Building Solutions v. 2420124 Ontario Limited, 2018 ONSC 3112 and T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665. In my view, these cases turn on their unique facts. I am not persuaded that they stand for the general proposition urged upon the court by Dr. Ghotbi. If they purport to do so, then I respectfully disagree.
[35] The Court of Appeal held, in Middleton v. Aboutown Enterprises Inc., 2009 ONCA 466, that the debtor does not have to demonstrate and confirm the amount of the debt that remains owing for the acknowledgment to be effective.
[36] In my view, it is sufficient that the debtor acknowledges that the debt claimed is owing, though he or she may dispute the precise amount or may refuse to pay. If it were otherwise, a written and signed statement by a debtor that he or she accepts that 95% of a claimed debt is owing, but disputes the other 5%, would be an ineffective acknowledgment under s. 13 of the Act. That cannot be the case.
[37] Second, while I agree with the submission that an effective acknowledgment must be clear and unequivocal (see 1702108 Ontario Inc. v. 3283313 Canada Inc., 2016 ONCA 420 at para. 5), I am not satisfied that the trial judge failed to turn his mind to this requirement.
[38] This was a Small Claims Court trial. The Small Claims Court deals with a very large volume of cases. Those cases are, by design, disposed of as expeditiously as possible. Deputy judges typically give brief oral reasons for their findings and conclusions immediately following, or shortly after, the evidence and arguments have been completed. One cannot expect the level of detail in those reasons as one might expect following a lengthy trial in this court.
[39] Trial judges are presumed to know the law and apply it correctly. There is nothing in the trial judge’s reasons that indicates that he was not aware of the applicable requirements of an effective acknowledgment under s. 13 of the Act. Indeed, I am of the view that it is implicit in the brief reasons given by the trial judge that he took the appropriate factors into account. Those factors had just been put to him in argument immediately before he rendered his decision.
[40] While the trial judge did not expressly use the phrase, “clear and unequivocal acknowledgment”, that is not surprising, since neither counsel expressly used that phrase in argument. That said, it is evident that part of the debate in submissions was about whether the texts in issue constituted a clear acknowledgment that the debt in issue was owing to Edges. The trial judge said that in his view it was “fairly clear on the plain wording of the textual exchanges” that they constituted an acknowledgment of the debt within the meaning of s. 13 of the Act. Read in context, I do not interpret the trial judge’s use of the adjective “fairly” to dilute in any way his conclusion that the acknowledgment was clear.
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[42] An acknowledgment of indebtedness is not effective, for the purposes of s. 13 of the Act, unless it is in writing and signed by the debtor or the debtor’s agent. . Michel v. Spirit Financial Inc.
In Michel v. Spirit Financial Inc. (Ont CA, 2020) the Court of Appeal held that a partial payment on a loan operated as an acknowledgement to re-start the limitation period:[19] ... In St. Hilaire v. Kravacek (1979), 1979 CanLII 1705 (ON CA), 26 O.R.(2d) 499 (C.A.), this court held at para. 12 that: “a payment by a debtor to his creditor, from which a new promise to pay the debt may be inferred, has the effect of starting afresh the running of a period of limitation.” . 1702108 Ontario Inc. v. 3283313 Canada Inc.
In 1702108 Ontario Inc. v. 3283313 Canada Inc. (Ont CA, 2016) the Court of Appeal sets out the specificity which is required before a debt admission constitutes an acknowledgement:[2] First, the appellant contends the motion judge erred in failing to find that a March 14, 2013 email sent by Mr. Durrani, when read in the context of payments made by the respondent following the appellant’s 2009 demand letter, was an acknowledgement of liability within the meaning of s. 13(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”). That sub-section provides, in part: “If a person acknowledges liability in respect of a claim for payment of a liquidated sum… the act… on which the claim is based shall be deemed to have taken place on the day on which the acknowledgement was made.”
[3] The motion judge held that Mr. Durrani’s email of March 14, 2013 did not constitute an acknowledgement of liability for the purposes of s. 13 of the Act. The motion judge held that although the email acknowledged an outstanding amount, it did not contain an acknowledgement or concession of the amount owing and, therefore, was not an acknowledgement of the debt.
[4] The appellant submits the motion judge applied the wrong legal test for identifying an acknowledgement in reaching that conclusion. It contends the respondent’s statement in the email that he could not make any payments until he had settled the dispute with his ex-partner amounted to an acknowledgement for the purposes of s. 13(1) of the Act.
[5] The language of the statute sets out the applicable test: s. 13(1) is engaged when a person acknowledges liability in respect of a claim for payment of a liquidated amount. In Middleton v. Aboutown Enterprises Inc., 2009 ONCA 466, this court held, at para. 1, that s. 13(1) requires a “clear and unequivocal acknowledgement of the debt claimed.” In that case, the court upheld the motion judge’s finding that a mere offer to settle a claim, without acknowledging that any amount remained owing, did not amount to an acknowledgement of liability for the purposes of s. 13(1).
[6] In the present case, Mr. Durrani’s March 14 email did not acknowledge liability for the liquidated sum of $296,700 demanded by the appellant in its March 14 correspondence. At most, the respondent’s March 14 email proposed negotiating a settlement plan, without acknowledging that any amount remained owing. When the appellant subsequently pressed for an acknowledgement of liability for the liquidated sum, the respondent refused to give one. Accordingly, we see no basis to interfere with the motion judge’s conclusion that the March 14, 2013 email was not an acknowledgement. We would not give effect to this ground of appeal.
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