Saturday, January 17, 2009

limitation periods and fraud: O.C.A.

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"...The respondent moves to quash the appeal from three judgments of Macdonald J. and, alternatively for an order for security for costs of the appeal. We are satisfied that there is no merit in the grounds for appeal except that concerning the application of the Limitations Act, R.S.O. 1980, c.240, s.45(1)(g) to one of the actions. The trial judge found that all of the facts to support the claim of fraud in that action were known to the plaintiff in 1980 and the action was commenced more than 6 years thereafter. He then stated "there is no limitation period applicable to the fraud I have found."

Counsel for the respondent argues that s.45(1)(g) of the Limitations Act does not apply to fraud claims and is supported in his position by statements in the reasons of two trial judges in Ontario. See Johnston v. Haynes (1915), 8 O.W.N. 551 and, Public Trustee v. Mortimer et al. reflex, (1985), 49 O.R. (2d) 741 at 752, letter d.

However, s.45(1)(g) applies a six year limitation to all actions, except slander, which are "on the case" and this expression has been construed as including actions for deceit, which must include fraud. See Warton's Law Lexicon, 14th edition at p.165; and see Mew, The Law of Limitations, 1st ed., at p.92; and see Morton, Limitation of Civil Actions, 1st ed., at p.101.

It may be that there has been some confusion between a claim for fraud and a fraudulent concealment of any cause of action. It may also be that s.43 of the Limitations Act has been read as impinging upon s.45(1)(g) of that Act. We go no further than to identify an arguable issue which should be resolved by the Court of Appeal...."

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