Thursday, 30 March 2017

Two Year Limitation Period Applies to Enforcement of Foreign Judgments: OCA

The Ontario Court of Appeal has at last made clear that a two year limitation period applies to proceedings for recognition and enforcement of foreign judgments.   Strathy C.J.O., writing for a unanimous court in Independence Plaza 1 Associates v. Figliotini [2017] O.J. No. 243, also ruled that the period begin when an appeal from the foreign judgment is dismissed, or if there was no appeal, when the time for bringing an appeal expires. 

Before Figliotini, there was uncertainty about whether a limitation period applies, which I commented on in my July 29, 2016 post.   Section 16 (2) of the Limitations Act, 2002, S.O. 2002, c. 24 says that there is no limitation period for 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”.  But does that extend to foreign court orders?   The Court of Appeal had not previously ruled on this provision, but had ruled, in Lax v Lax (2004), 70 O.R. (3d) 520 that the corresponding provision in the predecessor statute (the Limitations Act, R.S.O. 1990, ch. L 15 s. 45) did not include  foreign judgments.    In 2010 in Commission de la Construction du Quebec v Access Rigging (2010) 104 O.R. (3d) 313 a trial court had ruled that s. 16(2) does not extend to foreign judgments.    However, more recently other judges cast doubt on this.  In PT ATPK Resources v. Diversified Energy 2013 ONSC 5913 Justice Newbould held there was no reason to exclude foreign judgments from the scope of s. 16(2), and that comity is a reason to include them.  In SA Horeca Financial v Light 2014 ONCA 811, a summary judgment motion judge also disagreed with Access RIgging, and on a motion to the Court of Appeal to lift a stay of enforcement of a judgment in that case, Justice Weiler J.A. mentioned that judge’s views without disagreeing with him.

In Figliotini,  the Court analyzed the issue in depth, and gave several reasons why s. 16 (2) does not apply to foreign judgments.  Here are the main ones:  One, at common law, a foreign judgment cannot be directly enforced here; the judgment creditor must first obtain a judgment for recognition and enforcement.   As such, a foreign judgment is not an order that “may be enforced in the same way as an order of a court”.  

Two, a reason to apply a limitation period to a foreign judgment but not to a domestic judgment is that to enforce the former, one must first obtain a judgment enforcing that foreign judgment, and in that proceeding the judgment debtor may raise defences such as fraud and denial of natural justice.    The reasons why enforcement of a domestic judgment is not subject to a limitation period is that no proceeding is needed to enforce it, and the underlying claim has already passed a limitations hurdle.  

Three, to exempt foreign judgments from the limitation period is inconsistent with the purposes of limitation periods, which are to ensure that people are not exposed to claims for an unreasonably long time, and to ensure that plaintiffs bring their claims before evidence is lost.  Problems with the preservation and reliability of evidence are especially pronounced for foreign judgment debtors. 

As for when the limitation period starts, the fact a foreign judgment is considered final (a requirement for enforcement) even before the time for an appeal has run out does not have any bearing on limitations.   The test under the Limitations Act, 2002 is not when the judgment (or order) is final, but when it is discovered.     One element of a claim being discovered  is when “a proceeding would be an appropriate means to seek to remedy [the loss]” (s. 5(1) (a) 4).  A proceeding to enforce a foreign judgment would not be appropriate, Strathy C.J.O wrote, until the appeal period has expired or all appeals have been exhausted.    The Court did not say whether judgments from which leave to appeal must be obtained would be treated any differently.

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