Limitations - Re: Collection of Arrears (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-23
CLNP Page ID:	1179
Page Categories:	Payment of Rent (LTB)
Citation:	Limitations - Re: Collection of Arrears (LTB), CLNP 1179, <https://rvt.link/90>, retrieved on 2024-04-23
Editor:	Sharvey
Last Updated:	2023/10/03

See Also

• Effect (Expiry of Limitation Period)

1437619 Ontario Ltd. v Gao, 2023 ONSC 3487 (CanLII)

[1] The appellant appeals from the decision of Deputy Judge Twohig of the Toronto Small Claims Court dated December 5, 2022, with oral reasons given that day.

[2] The judgment from which the appeal is brought awarded the appellant $8,400.00 for rental arrears owed by the respondent, and awarded the respondent $3,000.00 in costs.

[3] The appellant submits that the Deputy Judge erred by:

a. Applying the two-year limitation period under the Limitations Act, S.O. 2002, c. 24 to the claim rather than the six‑year limitation period under s. 17 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (RPLA);

b. Implicitly finding that the respondent was severally (rather than jointly) liable for the rent claimed, and thereby reducing the amount awarded notwithstanding the respondent’s concession about the amount to be paid in the event the Deputy Judge found in favour of the Appellant;

c. Awarding costs to the respondent in circumstances in which the Appellant was the successful party at trial.

...

[29] For the reasons set out above, I find the Deputy Judge erred in law, and that the six‑year limitation under s. 17 of the RPLA applies to the claim in this case.

[30] This finding subsumes the second issue in the appeal. That is, given my conclusion that the six‑year limitation applies, the Appellant’s full claim of $21,600.00, dating back to October of 2016 remains intact and is not foreclosed or attenuated by a limitation.

Real Property Limitations Act, R.S.O. 1990, c. L.15

4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4.

5 (6) Where a person is in possession or in receipt of the profits of any land, or in receipt of any rent as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom that person claims, to make an entry or distress, or to bring an action to recover the land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy was received, whichever last happened. R.S.O. 1990, c. L.15, s. 5 (6).

(...)

17 (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent. R.S.O. 1990, c. L.15, s. 17 (1).

Lopera v. Margosutjahjo, 2020 ONSC 7436 (CanLII)

[3] The Board found that the tenant owed $92,070 in arrears of rent from February 1, 2014 to March 31, 2019. It ordered payment of $5,940 to the landlord from the monies that the tenant had paid in trust to the Board in accordance with an interim order for the payment of rent. As the maximum monetary award that the Board could order was $25,000, the Board ordered the tenant to pay $25,000 towards arrears within 11 days, failing which the tenancy was terminated and the landlord could enforce eviction.

...

[13] The tenant also argues that the Board should have applied the doctrine of laches to prevent the landlord from collecting rental arrears. Laches is an equitable doctrine. The Board correctly held that the doctrine is not applicable here.

[14] The Act contains no limitation period for the collection of arrears, although the legislation does have limitation periods for other remedies. For example, pursuant to s. 69 there is a limitation on how long after a notice to terminate the landlord can seek an order terminating the tenancy (30 days), but s. 69(3) says this does not apply if the application is regarding a failure to pay rent. As well, s. 29(2) puts a one-year limitation on applications with respect to the obligation to maintain. In other words, the absence of a limitation period concerning claims for arrears of rent is not a void that should be filled with the doctrine of laches but a legislative choice.

[15] For these reasons, the appeal is dismissed, and the stay of the Board’s eviction order is lifted.

Pioneer Corp. v. Godfrey, 2019 SCC 42 (CanLII)

[31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), (1986) 2 S.C.R. 147, at p. 224; Ryan, at paras. 2 and 22).

[48] Consideration of these rationales for limitation periods affirms discoverability’s application here. Even recognizing that shorter limitation periods indicate that Parliament put a premium on the certainty that comes with a limitation statute’s function of repose (Peixeiro, at para. 34), balancing all of the competing interests underlying s. 36(4)(a)(i) weighs in favour of applying discoverability. The ability of plaintiffs to advance claims for loss arising from conduct contrary to Part VI of the Competition Act outweighs defendants’ interests in barring them, especially where such conduct is, as I have already noted, concealed from plaintiffs (Fanshawe, at para. 46) (such that the evidentiary rationale — that is, the concern about evidence going “stale” — has no place in the analysis). To hold otherwise would create perverse incentives, encouraging continued concealment of anti-competitive behaviour until the two-year limitation period has elapsed. It would therefore not only bar plaintiffs from pursuing their claims, but reward concealment that has been “particularly effective” (Fanshawe, at para. 49).

[138] Limitation clauses are statutory provisions that place temporal limits on a claimant’s ability to institute legal proceedings. The expiry of a limitation period has the effect of “extinguish[ing] a party’s legal remedies and also, in some cases, a party’s legal rights” (G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed. 2016) (“Mew et al.”), at p. 3). As this Court explained in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), (1992) 3 S.C.R. 6, statutory limitation clauses reflect the balance struck by the legislature between three distinct policy rationales: granting repose to defendants, avoiding evidentiary issues relating to the passage of time, and encouraging diligence on the part of plaintiffs.

St. Jean v. Cheung, 2008 ONCA 815 (CanLII)

[43] While the new Limitations Act may have retrospective application in respect of purely procedural matters, extinguishing the right to pursue a claim is not purely procedural as it would alter substantive rights. In Martin v. Perrie, 1986 CanLII 73 (SCC), [1986] 1 S.C.R. 41, [1986] S.C.J. No. 1, at para. 17, the Supreme Court of Canada quoted with approval the following extract from the decision of the High Court of Australia in Maxwell v. Murphy (1957), 96 C.L.R. 261 (Aust. H.C.), at pp. 277-78:

Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which the proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute may well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the [page372] time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by the lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights. (Emphasis added)

Vellenga v. Boersma, 2020 ONCA 537 (CanLII)

[45] Furthermore, this court has explained that “[t]he expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded”: Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 21. While this matter was commenced by way of application and did not involve formal pleadings, the key point is that the limitation argument was not raised at any time prior to this appeal.

Markevich v. Canada, (2003) 1 SCR 94, 2003 SCC 9 (CanLII)

[49] As noted above, the federal Crown’s right to collect provincial taxes in this case is no greater than the right delegated to it by the province. Since the province’s collection rights are subject to expiry six years after the underlying cause of action arose, so too are the collection rights of the federal Crown as its agent.

[50] The cause of action here consisted of the tax debt and the expiry of the delay period allowing collection action to be taken on September 16, 1986. The Minister undertook no action in the six years after that date to effect a renewal of the limitation period. Consequently, as of September 16, 1992, the federal Crown became statute-barred from collecting the provincial tax debt. As well, the right and title of any claimant to the respondent’s provincial tax debt, and its accrued interest, were extinguished on that date.