Court of Appeal Provides Guidance on Applicable Limitation Period for the Enforcement of Foreign Judgments

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In Independence Plaza 1 Associates, LLC v. Figliolini, 2017 ONCA 44, the Court of Appeal for Ontario issued a decision on the appropriate limitation period for the enforcement of foreign judgments and has provided guidance on when the limitation period starts to run. Up until now, there has been conflicting case law among the Superior Courts as to the interpretation of s. 16(1)(b) of the Limitations Act, 2002, but this case finally puts an end to the current debate.

In summary: 

(1)   The basic two-year limitation period under s. 4 of the Limitations Act, 2002 applies to a proceeding on a foreign judgment; and 

(2)   The limitation period begins to run, at the earliest, when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision. The time may be longer if the claim was not “discovered” within the meaning of s. 5 of the Limitations Act, 2002, until a date later than the appeal decision. 

The Court clarified that s. 16(1)(b), which provides for no limitation period in certain circumstances, does not extend to foreign judgments. Section 16(1)(b) provides an exception to the basic limitation period for “claims 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.” The Court concluded that only the enforcement of domestic (Ontario) judgments are contemplated by that provision, including writs of seizure and sale, garnishment, or the appointment of a receiver. By contrast, the debt obligation created by a foreign judgment cannot directly be enforced in Ontario in the absence of reciprocal enforcement legislation. A proceeding in Ontario must be brought first in order for the judgment to be recognized here. Accordingly, s. 16(1)(b) does not apply to proceedings on foreign judgments, and the applicable limitation period is the basic two-year period in s. 4.