Failure to Renew Writ of Execution Within 20-year Limitation Period Bars Enforcement

Out Of Time Man

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Kovachis v. Dunn, 2011 ONSC 4174 (CanLII) confirms that failure to renew a writ of fieri facias (also referred to as a writ of seizure and sale or writ of execution) within the 20-year limitation period under the old Limitations Act, R.S.O. 1990, c. L.15 (the old Act) results in a time-bar of the enforcement of the underlying judgment under the transition provisions of the Limitations Act, 2002, S.O. 2002, C. 24, Sch. B, (the new Act).

The matter involved an application by Kovachis to determine whether Dunn has any interest in the proceeds of sale of a property in Toronto. Kovachis formerly had a one-third interest in the property which was sold on February 23, 2011. Counsel for Kovachis held $200,000.00 from the proceeds of the sale in trust pending the release of this decision.

On June 4, 1982, Dunn obtained a judgment against Kovachis in the amount of $84,554.79. Dunn filed the writ relating to the judgment with the Sheriff’s Office on June 24, 1982, which she renewed in 1988, 1994, and 2000. The writ expired on February 18, 2006.  Dunn filed a caution against Kovachis’ property on January 19, 2011, and in response to  Kovachis’ motion, sought an alias writ of execution to enforce her claim against the funds being held in trust by the law firm acting for Kovachis.

Justice Corrick held,

[16]           Writs extend limitation periods. A judgment can be enforced indefinitely by renewing a writ of seizure and sale: Lax v. Lax 2004 CanLII 15466 (ON CA), (2004), 239 D.L.R. (4th) 683 (Ont.C.A.). Failure to renew a writ requires an application for leave to issue an execution under rule 60.07(2) of the Rules of Civil Procedure. Such an application constitutes an action to enforce a judgment: Doel v. Kerr (1915), 25 D.L.R. 577 (S.C.(A.D.)).

[17]           The new Act governs claims that occur after January 1, 2004. Section 1 of the new Act defines a “claim” as a claim to remedy an injury, loss or damage that occurred as a result of an act or omission. Ms. Dunn argues that her claim is to remedy the loss caused by the unenforceability of the 1982 judgment as a result of an omission in 2006, which was her failure to renew the writ. Since the omission occurred after January 1, 2004, the new Act governs, and there is no limitation period on actions to enforce judgments: s. 16(1)(b).

[18]           This argument is contrary to the Ontario Court of Appeal’s decision in Placzek v. Green, supra, in which Simmons J.A. wrote at paragraph 39, “the term ‘acts or omissions’ in s. 24(2) refers to acts or omissions of a defendant.” Ms. Dunn cannot rely on her own omission to bring this case into the limitation regime of the new Act.

[19]           Ms. Dunn’s claim is based on a 1982 judgment, the enforcement of which was barred after twenty years under the old Act, unless it was kept alive by the continuous renewal of a writ of seizure and sale. The writ was not continuously renewed, and Ms. Dunn’s right to enforce the judgment expired in 2002, subject to being granted leave under rule 60.07(2) to obtain an alias writ. Her claim is based on an act that took place before January 1, 2004 and no proceeding to enforce her judgment had been commenced before January 1, 2004. Thus, the transitional provisions of the new Act apply, and Ms. Dunn’s application for an alias writ is barred as a result of s. 24(3), which provides that no proceeding shall be commenced in respect of a claim if the former limitation period expired before January 1, 2004.

Corrick J. also rejected Dunn’s ‘special circumstances’ argument, concluding that the court was bound by the Ontario Court of Appeal’s decision in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 (CanLII), 2008 ONCA 469 which held that the doctrine of special circumstances enables a court to amend or add a claim to an existing action, but does not give a ” court the power to allow the commencement of an action after the expiry of a limitation period. Ms. Dunn’s application for leave to issue an execution must be denied. ” (at para. 22).

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2 Responses to “Failure to Renew Writ of Execution Within 20-year Limitation Period Bars Enforcement”

  1. Chris Jaglowitz (@chrisjaglowitz) Says:

    A useful decision.

    It’s interesting that there was no explanation as to why the writ wasn’t renewed in 2006. That, as they say, is probably another story (and an E&O story at that).

  2. Antonin I. Pribetic Says:

    Oops.

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