



COURT OF APPEAL FOR ONTARIO

CITATION: Independence Plaza 1 Associates, L.L.C. v.
    Figliolini, 2017 ONCA 44

DATE: 20170118

DOCKET: C61847

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Independence Plaza 1 Associates, L.L.C.

Applicant
(Respondent in appeal)

and

John Figliolini

Respondent
(Appellant)

Larry M. Belowus, for the appellant

David M. McNevin, for the respondent

Heard: November 7, 2016

On appeal from the judgment of Justice Thomas J. Carey of
    the Superior Court of Justice, dated February 5, 2016.

Strathy C.J.O.:

[1]

This
    appeal raises two questions:

(a)

What limitation period applies to a proceeding on a foreign judgment in
    Ontario? and

(b)

When does that limitation period begin to run?

[2]

The
    motion judge found that the limitation period was the two-year basic
    limitation period specified in s. 4 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B. It began to run when the appeal of the foreign
    judgment was dismissed.

[3]

For
    the reasons that follow, I would dismiss the appeal and answer the questions it
    raises as follows:

(a)

A two-year limitation
    period applies to a proceeding on a foreign judgment; and

(b)

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.

A.

background

[4]

On
    January 24, 2013, the respondent obtained a judgment against the appellant in the
    New Jersey Superior Court for the payment of US$115,248. An appeal to the
    Appellate Division was dismissed on July 17, 2014.

[5]

On
    May 1, 2015, the respondent brought an application in the Ontario Superior
    Court of Justice to recover damages based on the New Jersey judgment, in an
    equivalent amount expressed in Canadian dollars. The application was commenced more
    than two years after the New Jersey judgment was rendered, but less than two
    years after the dismissal of the appeal.

[6]

The
    appellant pleaded that the proceeding was time-barred. He argued that the
    limitation period was two years under s. 4 of the
Limitations Act, 2002
and
    that time ran from the date of the first-instance New Jersey judgment. The
    result, he said, was that the limitation period expired before the application was
    commenced in Ontario.

[7]

The
    application judge rejected this defence and granted judgment in favour of the
    respondent.

B.

the application judges reasons

[8]

The
    application judge held that the proceeding on the New Jersey judgment was in
    time because it was commenced within two years of the dismissal of the New
    Jersey appeal.

[9]

He
    found support for his decision that time ran from the date of the New Jersey
    appeal in Part III, Art. III, s. 1 of the
Reciprocal Enforcement of
    Judgments (U.K.) Act
, R.S.O. c. R.6 (REJUKA), which provides that a
    judgment of a United Kingdom court may be enforced in Ontario within six years
    after the date of judgment or, where there have been proceedings by way of
    appeal against the judgment,
after the date of the last
    judgment given in those proceedings
 (emphasis added).

[10]

He also found support
    in the Supreme Court of Canadas decision in
Yugraneft Corp. v. Rexx
    Management Corp
., 2010 SCC 19, [2010] 1 S.C.R. 649. Rothstein J. held at
    para. 57 that a judgment debtors non-performance of the obligation created by a
    foreign arbitration judgment is only discoverable under the Alberta
Limitations
    Act
, R.S.A. 2000, c. L-12, 
on the date the appeal
    period expires or, if an appeal is taken, the date of the appeal decision

    (emphasis added).

[11]

In the application
    judges view, it would be inefficient and promote a multiplicity of proceedings
    to require a foreign judgment creditor to commence an Ontario proceeding
    pending an appeal of the underlying judgment.

[12]

The application judge
    found it unnecessary to consider the respondents alternative argument that its
    proceeding on the New Jersey judgment fell under s. 16(1)(b) of the
Limitations
    Act
,
2002
, which states that there is no limitation period in
    respect of 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. He suggested,
    however, that this court might wish to reconsider its decision in
Lax v.
    Lax
(2004), 70 O.R. (3d) 520 (C.A.), which dealt with the limitation
    period for a proceeding on a foreign judgment under the predecessor to the
Limitations
    Act, 2002
.

C.

the submissions of the parties

(1)

The Appellant

[13]

The appellant submits
    that the application judge erred in holding that the limitation period began to
    run from the disposition of the New Jersey appeal. He submits it ran from the
    date of the first-instance judgment in New Jersey.

[14]

He relies on this
    courts decision in
Lax
, holding that a foreign judgment is
    characterized as a simple contract debt, and argues that the basic two-year
    limitation period in s. 4 of the
Limitations Act, 2002
applies. He also
    relies on a line of Ontario jurisprudence establishing that a foreign judgment
    is final for the purpose of suing on it in Ontario even if the time for appeal
    has not expired or an appeal is pending: see
Four Embarcadero Center
    Venture v. Mr. Greenjeans Corp
. (1988), 64 O.R. (2d) 736 (H.C.); and
Continental
    Casualty Company Co. v. Symons Estate
, 2015 ONSC 6394, 127 O.R. (3d) 758.

(2)

The Respondent

[15]

The respondent maintains
    that no limitation period applies to a proceeding on a foreign judgment because
    it falls under s. 16(1)(b) of the
Limitations Act, 2002
.

[16]

Alternatively, it says
    that if there is a two-year limitation period, the case law concerning when a foreign
    judgment becomes final has no application under the
Limitations Act
,
2002
and that time does not begin to run until appeal rights in the foreign
    jurisdiction have been exhausted.

D.

analysis

[17]

The correct approach
    to resolving the two questions raised by this appeal begins and ends with the
    provisions of the
Limitations Act, 2002
, which is a comprehensive and
    exhaustive scheme for dealing with limitation periods:
Intact Insurance Co.
    of Canada v. Lombard General Insurance Co. of Canada
, 2015 ONCA 764, 128
    O.R. (3d) 658, at paras. 53-56, leave to appeal to S.C.C. refused, [2016]
    S.C.C.A. No. 10 and [2016] S.C.C.A. No. 11.

[18]

Accordingly, I will
    begin my analysis by explaining the purpose of statutes of limitation. I will
    then examine the relevant provisions of the former Ontario
Limitations Act
,
    R.S.O. 1990, c. L.15, and their interpretation in the case law. Finally, I will
    discuss the legislative history of the
Limitations Act, 2002
and the
    relevant provisions of the statute. Against this background, I will address the
    two questions raised by this appeal.

(1)

Discussion

(i)

The purposes of statutes of limitation

[19]

Limitations statutes
    reflect public policy about efficiency and fairness in the justice system.
    There are three broad policy justifications for limitation statutes:
Manitoba
    Metis Federation Inc. v. Canada (Attorney General)
, 2013 SCC 14, [2013] 1
    S.C.R. 623, at paras. 231-234.

[20]

First, they promote
    finality and certainty in legal affairs by ensuring that potential defendants
    are not exposed to indefinite liability for past acts:
Hare v. Hare
(2006),
    83 O.R. (3d) 766 (C.A.), at para. 41. They reflect a policy that, after a
    reasonable time, people should be entitled to put their business and personal pasts
    behind them and should not be troubled by the possibility of stale claims
    emerging from the woodwork.

[21]

Second, they ensure
    the reliability of evidence. It is inefficient and unfair to try old claims
    because evidence becomes unreliable with the passage of time. Memories fade,
    witnesses die and evidence gets lost. After a reasonable time, people should
    not have to worry about the preservation of evidence:
K.M. v. H.M.
,
    [1992] 3 S.C.R. 6, at p. 30.

[22]

Third, and related to
    this, limitation periods promote diligence because they encourage litigants to
    pursue claims with reasonable dispatch.

[23]

Other justifications
    have been given, including the interest in the efficient use of public
    resources through the expeditious resolution of disputes and the desirability
    of adjudicating disputes on the basis of contemporary values and standards: see
    Graeme Mew,
The Law of Limitations
, 3d ed. (Toronto, LexisNexis,
    2016), at pp. 16-18.

(ii)

The former
Limitations Act
, R.S.O. 1990, c. L.15

[24]

Section 45(1)(g) of the former
Limitations Act
contained
    a six-year limitation period for an action on a simple contract or debt. A long
    line of cases held that an action on a foreign judgment was an action on a
    simple contract debt for limitations purposes and therefore subject to that
    six-year limitation period: see
Lax
, at para. 11;
Rutledge v.
    United States Saving & Loan Co.
(1906), 37 S.C.R. 546, at p. 547; and
Bedell
    v. Gefaell (No. 1)
, [1938] O.R. 718 (C.A.), at p. 720. This view was based
    on the fiction of an implied promise by the foreign judgment debtor to pay the
    amount of the judgment. As Feldman J.A. noted, at para. 13 of
Lax
,
    this fiction was necessary because, unlike a domestic judgment, a foreign
    judgment cannot be directly enforced [in Ontario] by execution. Rather, an
    action must be brought to enforce the debt it creates.

[25]

Section 45(1)(c) of the former
Limitations Act
also
    contained a twenty-year limitation period on an action upon a judgment or
    recognizance. In
Lax
, at paras. 20-25, Feldman J.A. confirmed that
    this provision did not apply to an action on a foreign judgment. It applied to
    an action brought in order to toll the limitation period to enforce a domestic
    judgment using the execution procedures set out in r. 60 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.

[26]

The practice of bringing an action on a domestic judgment to
    toll the limitation period for its enforcement within the province was
    discussed by the British Columbia Court of Appeal in
Young v. Verigin
,
    2007 BCCA 551, 72 B.C.L.R. (4th) 332, at paras. 4-8. Newbury J.A. observed that
    in British Columbia, the limitation period for an action on a domestic judgment
    for the payment of money was reduced from twenty to ten years by the
Limitations
    Act
, S.B.C. 1975, c. 37, s. 3(2)(f). That provision was then amended by
    the
Enforcement of Canadian Judgments and Decrees Act
, S.B.C. 2005, c.
    29, by inserting the word local before the word judgment, presumably to
    clarify that the provision did not apply to foreign judgments: see
Limitation
    Act
, S.B.C. 2012, c. 13, s. 7(a).

[27]

In
Lax
,

this court rejected the
    suggestion of Cumming J., in
obiter
, in
Girsberger v. Kresz
(2000), 47 O.R. (3d) 145 (S.C.), at paras. 30-50, affd on other grounds,
    (2000), 50 O.R. (3d) 157 (C.A.), that the historical classification of foreign
    judgments as simple contract debts should be abandoned in order to give full
    faith and credit to foreign judgments on the basis of comity, order and
    fairness. Cumming J.s suggestion would have subjected foreign judgments to the
    twenty-year limitation period in s. 45(1)(c) of the former
Limitations Act
.

(iii)

The history of the
Limitations Act, 2002

[28]

The
Limitations
    Act, 2002
was the culmination of several attempts, beginning in the late
    1960s, to reform, consolidate and simplify the law of limitations in Ontario.
    The history of those attempts was set out by Weiler J.A. in
York
    Condominium Corp. No. 382 v. Jay-M Holdings Ltd.
, 2007 ONCA 49, 84 O.R.
    (3d) 414, at paras. 27-30. See also
McConnell v. Huxtable
, 2013 ONSC
    948, 113 O.R. (3d) 727, at paras. 62-73, affd, 2014 ONCA 86.

[29]

The purpose of the new
    statute was to replace a complex, obscure and confusing regime of multiple
    limitation periods with a simple and comprehensive scheme. The new scheme consists
    of a basic two-year limitation period applicable to most claims, an ultimate
    limitation period of fifteen years and a statutorily-enshrined discoverability
    principle. It was intended to promote certainty and clarity in the law of
    limitation periods: see
Dilollo Estate (Trustee of) v. I.F. Propco Holdings
    (Ontario) 36 Ltd.
, 2013 ONCA 81, 117 O.R. (3d) 81, at para. 61.

(iv)

The
Limitations Act, 2002

[30]

The following
    provisions of the
Limitations Act, 2002
are relevant:

Definitions

In this act

claim means a claim to remedy an injury, loss or
    damage that occurred as a result of an act or omission;

Application

(1) This Act applies to claims pursued in court
    proceedings other than  [not applicable].



Basic Limitation Period

4.
Discovery
5.  (1)
(a) the day on which the
    person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,
(iii) that the act or omission was that of the
    person against whom the claim is made, and
(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and
(b) the day on which a
    reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).
Presumption
(2)

No limitation period
16. (1)

(b) 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;
[31]

Because the proceeding
    on the New Jersey judgment brought by the respondent in this appeal is a claim
    pursued in a court proceeding, it falls within the comprehensive and
    exhaustive scheme of the statute.
[32]

The
Limitations
    Act, 2002
eliminated its predecessors twenty-year limitation period for
    an action upon a judgment or recognizance. However, it included 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 in the proceedings for which there is no limitation
    period under s. 16(1).
(2)

Does s.
    16(1)(b) apply to a proceeding on a foreign judgment?
[33]

I turn now to the
    first question raised in this appeal  whether there is
any
limitation period applicable to a proceeding on a foreign judgment. Section
    16(1) of the
Limitations Act, 2002
, which had no counterpart in the
    former statute, created a class of claims that are subject to no limitation
    period, rather than the basic two-year limitation period or the ultimate fifteen-year
    limitation period.
[34]

The matters covered by
    s. 16(1) are, in summary, as follows:
·

claims for declaratory relief, if no consequential relief is
    sought;
·

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;
·

claims for support or maintenance in family law matters;
·

proceedings to enforce a domestic arbitration award;
·

proceedings under the
Civil Remedies Act, 2001
, S.O.
    2001, c. 28;
·

claims by debtors or creditors in possession of collateral;
·

claims in relation to sexual assault, sexual misconduct in
    relation to minors and assault on minors; and
·

certain proceedings by the Crown or other agencies in relation to
    claims by the Crown or in relation to government programs, loans or grants.
[35]

The interpretation of
    s. 16(1)(b) has been the subject of conflicting decisions of the Ontario Superior
    Court of Justice. In
Commission de la Construction du Quebec v. Access
    Rigging Services Inc.
, 2010 ONSC 5897, 104 O.R. (3d) 313, McLean J. dealt
    with an application to enforce a 2005 Quebec judgment in Ontario. The
    application was brought in 2010. Quebec is not a reciprocating party to the
Reciprocal
    Enforcement of Judgments Act
, R.S.O. 1990, c. R.5 (REJA). Hence, the
    basic two-year limitation period applied unless the claim fell within s.
    16(1)(b) of the
Limitations Act, 2002
. The judgment debtor sought to
    dismiss the application as time-barred.
[36]

The judgment creditor,
    relying on
Morguard Investments Ltd. v. De Savoye
, [1990] 3 S.C.R.
    1077, and
Girsberger
argued that comity supported a liberal interpretation
    of s. 16(1)(b) as being applicable to foreign judgments.
[37]

McLean J. rejected
    this argument, finding that the two-year limitation period applied. Relying on
Lax
,
    he held that nothing in the wording of order of a court in s. 16(1)(b) shows
    an intention to change the common law position that a foreign judgment cannot
    be directly enforced in Ontario and that it must be converted into a domestic
    judgment that is enforceable in Ontario. In previous iterations of the act, the
    analogous term judgment referred to domestic judgments that could be enforced
    in Ontario without bringing a proceeding on the judgment.
[38]

Moreover, McLean J.
    held that to interpret s. 16(1)(b) as applicable to proceedings on foreign
    judgments would be inconsistent with REJA, which contains a six-year limitation
    period for the registration of judgments of the courts of other provinces and
    territories, except Quebec.
[1]
He found that the judgment creditors argument would lead to the incongruous
    result that there was no limitation period applicable to proceedings on Quebec
    judgments in Ontario, but proceedings on the judgments of other provinces would
    have a six-year limitation period.
[39]

McLean J. observed
    that the purpose of the
Limitations Act, 2002
was to simplify the
    previously complex scheme of limitations and said it would have been simple
    enough to include foreign judgments in s. 16(1)(b), had that been the
    legislatures intention. It was not the courts responsibility to make a change
    that the legislature had not.
[40]

In
PT ATPK
    Resources TBK (Indonesia) v. Diversified Energy and Resources Corp.
,

2013
    ONSC 5913, Newbould J. questioned the reasoning in
Access Rigging.
He
    suggested that knowledge of a foreign judgment did not fit well with the language
    of knowledge of injury loss or damage in the discoverability provision in s.
    5 of the
Limitations Act, 2002
. In his view, it made more sense to
    treat a claim for the enforcement of a foreign judgment as having no limitation
    period under s. 16(1)(b), to which the discoverability provision does not apply.
    This, he said, would also be more consistent with the principles of comity
    expressed by the

Supreme Court of Canada in
Beals v. Saldhana
,
    2003 SCC 72, [2003] 3 S.C.R. 416,

and
Pro Swing Inc. v. Elta Golf
    Inc
., 2006 SCC 52, [2006] 2 S.C.R. 612.
[41]

In
S.A. Horeca
    Financial Services v. Light
, 2014 ONSC 4551,
[2]
Murray J. disagreed with
Access Rigging
and preferred the reasoning in
PT ATPK.
He also referred to
Beals
, noting the importance of
    comity. In contrast to the view taken in
Access Rigging
, he suggested
    that the legislatures failure to
exclude
foreign
    judgments from s. 16(1)(b) was significant.
[42]

It falls to this court,
    as a matter of first impression, to interpret whether s. 16(1)(b) applies to a
    proceeding on a foreign judgment. The words of s. 16(1)(b) are to be read in
    light of the language of the provision as a whole, their context within the
    statutory scheme, and the purposes of the
Limitations Act, 2002:
see
R.
    v. Hajivasilis
, 2013 ONCA 27, 114 O.R. (3d) 337, at para. 23; and
Ayr
    Farmers Mutual Insurance Co. v. Wright
, 2016 ONCA 789, at paras. 26,
    28-29, 31-32.
[43]

First
, therefore, I consider the language of
    s. 16(1)(b) as a whole.
[44]

Phrases serving
    parallel functions and associated by the disjunction or in a statutory
    provision influence each others meaning. The parallelism invites the reader
    to look for a common feature among the terms to resolve any ambiguities: Ruth
    Sullivan,
The Construction of Statutes
, 6th ed. (Markham: LexisNexis,
    2014), at p. 230. The Supreme Court has stated that a term or an expression
    should not be interpreted without taking the surrounding terms into account in
    order to identify a common thread:
Opitz v. Wrzesnewskyj
, 2012 SCC
    55, [2012] 3 S.C.R. 76, at paras. 40, 43.
[45]

In my view, the term
    order of a court in s. 16(1)(b) takes its meaning, in part, from the parallel
    phrase immediately associated with it  namely, any other order that may be
enforced
in the same way as an order of a court
    (emphasis added). I observe that a similar parallel phrase is found in s. 19(1)
    of the
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, which
    provides that [a] certified copy of a tribunals decision or order in a
    proceeding may be filed in the Superior Court of Justice by the tribunal or by
    a party and on filing shall be deemed to be an order of that court and is
enforceable
as such (emphasis added).
[46]

The common feature
    or common thread linking these parallelisms is the concept of enforceability.
    Section 16(1)(b) of the
Limitations Act, 2002
applies to court orders
    and to other orders, such as those of persons exercising a statutory power of
    decision, that are enforceable in the same way as a court order.
[47]

This common thread within
    s. 16(1)(b) does not extend to foreign judgments. The domestic judgments contemplated
    by the provision are directly enforceable in Ontario by means of the execution procedures
    in r. 60 of the
Rules of Civil Procedure
, including writs of seizure
    and sale, garnishment, or the appointment of a receiver:
Lax
, at para.
    21. By contrast, like an order of a foreign arbitral tribunal, the debt
    obligation created by a foreign judgment cannot be directly enforced in Ontario
    in the absence of reciprocal enforcement legislation such as REJA or REJUKA. A
    proceeding in Ontario must be brought first: see
Lax
at paras. 11-13;
Yugraneft
at para. 45;
Chevron Corp. v. Yaiguaje
, 2015 SCC 42, [2015] 3
    S.C.R. 69, at para. 43. That proceeding may result in a judgment or order of
    the Ontario court. The resulting order may be enforced as an order of the court,
    with no applicable limitation period.
[48]

Thus, the judgment of
    a foreign court is one step removed from being an order of a court for the
    purpose of s. 16(1)(b) of the
Limitations Act, 2002
. It is not on the
    same level as an order of an Ontario court or any other order, such as an order
    of an Ontario statutory decision maker, which may be enforced as an order of a
    domestic court. This was adverted to by Feldman J.A. in
Lax
, at para.
    31, in explaining why she did not agree with the approach taken by Cumming J.
    in
Girsberger
:
[A]s long as only domestic judgments can be enforced by
    execution and the other methods discussed above, and therefore foreign
    judgments must be transformed into domestic judgments or registered before they
    are enforceable as domestic judgments, there is not parity of treatment.
[49]

There are good reasons
    for giving different treatment for limitations purposes to the enforcement in
    Ontario of a judgment of an Ontario court, on the one hand, and a judgment of a
    foreign court, on the other hand. The principle of territorial sovereignty means
    that the judgment of a court has effect only inside the territory in which the
    court is located and cannot be enforced outside its borders: Stephen G.A. Pitel
    & Nicholas S. Rafferty,
Conflict of Laws
, 2d ed. (Toronto: Irwin
    Law, 2016), at p. 162. The extraterritorial enforcement of a courts order is not
    a legitimate exercise of state power: see
Tolofson v. Jensen
, [1994] 3
    S.C.R. 1022, at p. 1052;
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17,
    [2012] 1 S.C.R. 572, at para. 31;
Chevron
, at paras. 47-48; and
Endean
    v. British Columbia
, 2016 SCC 42, 401 D.L.R. (4th) 577, at para. 45.
[50]

Thus, while a domestic
    judgment can be enforced as of right in Ontario, it is necessary to bring a
    proceeding on a foreign judgment. If that proceeding is successful, it will
    give rise to an Ontario judgment which can be directly enforced in the province.
[51]

Furthermore, a
    judgment creditor who brings an Ontario proceeding on a foreign judgment must show
    that the foreign court had jurisdiction and that the judgment is final and for
    the payment of money (or that it would be appropriate for the Ontario court to
    recognize it as enforceable within the province even if it is interlocutory or
    non-monetary): see
Pro Swing
;
Chevron
; and
Cavell
    Insurance Co. (Re)
(2006), 80 O.R. (3d) 500 (C.A.), at para. 41.
[52]

The foreign judgment
    debtor is entitled to raise defences to the proceeding, such as fraud, denial
    of natural justice and public policy: see
Beals
. These defences
    distinguish foreign judgments from local judgments, against which the sole
    recourse is an appeal: Janet Walker & Jean-Gabriel Castel,
Canadian
    Conflict of Laws
, loose-leaf (Rel. 54-3/2016 Pub.5911), 6th ed. (Toronto:
    LexisNexis, 2005), at para. 14.3.
[53]

I conclude that the
    language of s. 16(1)(b) of the
Limitations Act, 2002
suggests that the
    term order of a court refers to an order of a domestic court.
[54]

Second
, I consider the statutory context of
    s. 16(1)(b) of the
Limitations Act, 2002
.
[55]

Section 16(1)(b) also
    takes its meaning from the surrounding provisions of s. 16. When statutory
    provisions are grouped together, the legislature is presumed to have drafted
    each with the others in mind:
Inland Revenue Commissioners v. Hinchy
,
    [1960] A.C. 748 (H.L.), at p. 766. They tend to illuminate each others meaning
    because they share a single idea: Ruth Sullivan,
Statutory Interpretation
,
    3d ed. (Toronto, Irwin Law, 2016), at p. 175.
[56]

The other provisions
    grouped together in s. 16 pertain to claims such as family law support awards,
    sexual assault claims and government claims that are considered so important
    that, for one policy reason or another, they should have no limitation period
    at all. For example, the policy reason underlying the exemption for sexual
    assault claims is grounded in the likelihood that the dynamic of the
    relationship will impede the autonomy of the victim:
Boyce v. Toronto
    (City) Police Services Board
, 2011 ONSC 53, at para. 40,
    affd, 2012 ONCA 230.
[57]

In
    this context, it is important to identify the policy reason for including claims
    to enforce an order of a court in the subset of claims that have no
    limitation period under s. 16. In my view, the reason is that such claims have
    already passed a limitations hurdle under Ontario law  a court order can only
    be obtained if the underlying cause of action giving rise to it was not
    time-barred.
[58]

This
    was the policy reason suggested by the British Columbia Law Reform Commission,
    in its 1974
Report on Limitations
, for the
    argument that no limitation period should apply to claims to enforce domestic court
    orders. As quoted by Newbury J.A. in
Young v. Verigin
, at para. 7, the commission wrote:
Furthermore, the successful plaintiff cannot
    be said to have slept on his rights. He has taken action, and as a consequence
    recovered judgment. It might be argued, with considerable justification, that
    no limitation period whatsoever should exist with respect to the enforcement of
    judgments. It may seem unfair that the plaintiff who has been put to the
    trouble and expense of obtaining a judgment to enforce a right or obligation
    should face a further limitation period with respect to the exercise of his
    rights under the judgment. Why should he not be free to pursue his rights under
    the judgment at his leisure if he so chooses?
[59]

It
    follows that the term order of a court in s. 16(1)(b) should be interpreted
    as referring to an order of a domestic court only. A proceeding on a foreign
    judgment has not passed any Ontario limitations hurdle. If the action on the foreign
    judgment is successful, it results in an Ontario judgment, which is subject to
    no limitation period. But that can only be justified if the underlying cause of
    action based on the foreign judgment has already passed a limitations hurdle in
    Ontario.
[60]

I find support for
    this conclusion in the
Report of the

Ontario Law Reform Commission
    on the Limitation of Actions
(Toronto: Department of the Attorney General,
    1969), at pp.50-51. The report stated, at p. 49, that there was good reason to
    apply the longer twenty-year limitation period in the former
Limitations
    Act
to actions on domestic judgments because, in terms later adopted by
    the British Columbia report, the successful plaintiff cannot be said to have
    slept on his rights. He has taken action and, as a consequence, recovered
    judgment. However, the report nevertheless recommended that foreign judgments
    should remain subject to the six-year limitation period governing debts in the
    former
Limitations Act
, notwithstanding the artificiality of treating
    them as simple contract debts.
[61]

It is also noteworthy
    that several provinces have subjected foreign judgment proceedings to a special
    limitation period that is distinct from the one that applies to proceedings on
    domestic judgments. British Columbias
Limitation Act
subjects local
    judgment proceedings to a ten year limitation period in s. 7, but it deals with
    extraprovincial judgments separately. Section 2(1)(l) of Manitobas
The
    Limitation of Actions Act
, C.C.S.M., c L150, treats Canadian judgments
    differently from other judgments. Newfoundland sets a six-year limitation
    period on an action to enforce a foreign judgment and a ten-year period on
    actions to enforce a judgment of a court in the province: see
Limitations
    Act
, S.N.L. 1995, c. L-16.1, s. 6(1)(g). And Prince Edward Islands
Statute
    of Limitations
, R.S.P.E.I. 1988, c. S-7, s. 2(1)(f) distinguishes between
    extraprovincial judgments and other judgments.
[62]

The statutory context
    therefore suggests that the language of s. 16(1)(b) of the
Limitations Act,
    2002
is confined to orders of domestic courts.
[63]

Third
, and finally, I consider s. 16(1)(b)
    in light of the purposes of limitations statutes.
[64]

It would be contrary
    to the purposes of limitations statutes to interpret s. 16(1)(b) as exempting
    foreign judgments from any limitation period. If it were always possible to
    bring a proceeding on a foreign judgment in Ontario without time limitation, no
    matter when and where it was obtained, the debtor would be indefinitely exposed
    to the prospect of defending such proceedings in Ontario. As was pointed out in
    the Ontario Law Reform Commissions report at p. 50, problems associated with
    the preservation and reliability of evidence are especially pronounced for
    foreign judgment debtors. This militates in favour of having some limitation
    period apply to proceedings on foreign judgments. As well, exempting such
    proceedings from a limitation period would not encourage diligence or
    reasonable dispatch on the part of the foreign judgment creditor, who, unlike
    domestic judgment creditors, has not already surmounted an Ontario limitations
    hurdle.
[65]

Before concluding, I would
    remark that, despite their undoubted importance, the principles of comity
    expressed in
Morguard
,
Beals
,
Chevron
and
Cavell
do not require the absence of
any
limitation
    period for a proceeding on a foreign judgment. Nor do they supersede the
    equally important policy rationales for limitations statutes. It is one thing
    to remove barriers to the extraterritorial recognition of foreign judgments.
    But it is quite another to grant them more generous status than any other debt
    obligation or to give them the same status as a domestic judgment for
    limitations purposes, thereby circumventing the very reasons for limitation
    periods.
[66]

I conclude, therefore,
    that s. 16(1)(b) of the
Limitations Act, 2002
does not apply to
    proceedings on foreign judgments, and the applicable limitation period for the
    respondents proceeding on the New Jersey judgment at issue in this appeal is
    the basic two-year period in s. 4. The result is that time begins to run when
    the claim is discovered within the meaning of s. 5. I turn to that question
    next.
(3)

When does time begin
    to run on a proceeding on a foreign judgment in Ontario?
[67]

The application judge found
    that the limitation period for the respondent to commence his proceeding on the
    New Jersey judgment ran from the date the New Jersey appeal was dismissed. As I
    have noted, he found that this was consistent with REJUKA and with the Supreme
    Courts approach to the enforcement of foreign arbitral awards in
Yugraneft.
[68]

The appellant submits
    that this is inconsistent with previous authorities, including the decision of
    Henry J. in
Four Embarcadero
and, more recently, the decision of Glustein
    J. in
Continental Casualty
. Those cases stand for the proposition that
    a proceeding on a foreign judgment may be commenced in Ontario even if the judgment
    is not final, in the sense that the time to appeal it in the foreign
    jurisdiction has not expired or it is actually under appeal.
[69]

In my view, those
    cases are of no assistance in resolving the issue of when time begins to run in
    a proceeding on a foreign judgment. The question of a judgments finality is
    relevant not to statutory limitation periods to commence a proceeding on a
    foreign judgment, but to the conditions that a foreign judgment creditor must
    satisfy to succeed on the proceeding: see
Cavell
, at paras. 41-43.
[70]

The test under the
Limitations
    Act, 2002
is not whether the judgment is final; it is when the claim is
discovered
, a fact that is ascertained through the
    application of s. 5(1), aided by the presumption in s. 5(2).
[71]

I acknowledge the
    point made by Newbould J. in
PT ATPK
that, in the context of s. 5(1)
    of the
Limitations Act, 2002
, a proceeding on a foreign judgment does
    not fall particularly neatly into the definition of claim as a claim to
    remedy an injury, loss or damage that occurred as a result of an act or
    omission. However, the statute was meant to be comprehensive and exhaustive.
    Section 2(1) provides that it applies to claims pursued in court proceedings,
    and s. 4 provides that the basic two-year limitation period applies unless
    this Act provides otherwise.
[72]

The words injury, loss
    or damage in s. 5(1) can reasonably refer to the debt obligation created by a
    foreign judgment and owed by the foreign judgment debtor to the creditor. The
    act or omission can reasonably refer to the debtors failure to discharge the
    obligation once it became final
.
Viewed in this light, s. 5(1) can
    reasonably be viewed as applying to a proceeding on a foreign judgment.
[73]

I note, in this
    regard, that the discoverability provision in Albertas
Limitations Act
differs from the Ontario provision in that it contains a definition of injury
    that includes the non-performance of an obligation. Rothstein J. adverted to this
    definition in
Yugraneft
, at para. 50. Although Newbould J.s comment in
PT ATPK
is a fair one, Justice Rothsteins reference lends weight to
    the observation that fitting a foreign judgment within the definition of
    injury in s. 5(1) of the
Limitations Act, 2002
is not as strained as
    it might seem.
[74]

Section 5(1) provides
    that a claim is discovered on the earlier of: (a) the day on which the claimant
    first knew, among other things, that having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and (b) the day on which a reasonable person with the abilities
    and in the circumstances of the person with the claim first ought to have known
    of the matters referred to in clause (a). The test in s. 5(1)(a) has been
    referred to as a subjective test because it looks to the claimants actual
    knowledge, and the test in s.5(1)(b) as a modified objective test because it
    looks to what a reasonable person with the abilities and in the circumstances
    of the claimant ought to have known: see
Ferrera v. Lorenzetti Wolfe
    Barristers and Solicitors
, 2012 ONCA 851, 113 O.R. (3d) 401, at para. 70;
    and
Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco
    Canada Limited)
, 2017 ONCA 16, at para. 35.
[75]

In
407 ETR
    Concession Co. v. Day
, 2016 ONCA 709, at para. 48, Laskin J.A. explained
    that one reason why the legislature added appropriate means [in s. 5(1)(a)] as
    an element of discoverability was to enable courts to function more efficiently
    by deterring needless litigation. Appropriate means legally appropriate.
    For example, a tactical choice to delay commencement of a proceeding to engage
    in settlement discussions after a loss, injury or damage is known does not make
    the proceeding inappropriate:
Markel Insurance Co. of Canada v. ING
    Insurance Co. of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 24.
[76]

Appropriateness must
    be assessed on the facts of each case, and case law applying s. 5(1)(a)(iv) is
    of limited assistance:
Brown v. Baum
, 2016 ONCA 325, 348 O.A.C. 251,
    at para. 41. However, it is noteworthy that courts have held that a proceeding
    is not legally appropriate until other mechanisms for resolving a dispute, such
    as a statutory remedial process, have been exhausted: see
407 ETR
, at
    para. 40;
U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality)
,
    2014 ONSC 1103, at paras. 22-25;
Kadiri v. Southlake Regional Health Centre
,
    2015 ONSC 621, at paras. 52-57, affd, 2015 ONCA 847; and Mew, at pp. 95-96.
[77]

In the usual case, it
    will not be legally appropriate to commence a legal proceeding on a foreign
    judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction
    has expired or all appeal remedies have been exhausted. The foreign appeal
    process has the potential to resolve the dispute between the parties. If the
    judgment is overturned, the debt obligation underlying the judgment creditors
    proceeding on the foreign judgment disappears.
[78]

This approach is
    consistent with the decision of the Alberta Court of Appeal in
Laasch v. Turenne
,
    2012 ABCA 32, 522 A.R. 168. In that case, the court determined that the
    statutory limitation period to commence a proceeding on a Montana judgment
    began to run even while the creditor sought to register the judgment under
    Albertas reciprocal enforcement legislation. The existence of the reciprocal
    enforcement statute
did not
displace the common
    law process for a proceeding on a foreign judgment. Therefore, the proceeding
    was warranted within the meaning of the discoverability provision of
    Albertas
Limitations Act
even while the creditor sought registration.
[79]

To regard a claim
    based on the foreign judgment as discoverable and appropriate only when all
    appeals have been exhausted is also consistent with the observations of
    Rothstein J. in
Yugraneft
. He stated, at para. 57, that the limitation
    period to enforce a foreign arbitral judgment under Albertas
Limitations
    Act
starts to run when the time to appeal the judgment has expired or,
    where an appeal is taken, the date of the appeal decision.
[80]

Finally, as the
    application judge noted, this approach avoids the risk of multiplicity of
    proceedings by not requiring the judgment creditor to commence a proceeding on
    a foreign judgment in Ontario before all proceedings in the foreign
    jurisdiction have run their course. It furthers the purpose of s. 5(1)(a)(iv)
    of the
Limitations Act, 2002
by deterring the unnecessary litigation
    that may result from commencing an Ontario proceeding on a foreign judgment
    that is subsequently overturned.
[81]

The foregoing approach
    to the discoverability of a foreign judgment does not preclude a foreign
    judgment creditor seeking an interim
Mareva
injunction to freeze
    exigible assets of the judgment debtor in Ontario before a proceeding on the
    foreign judgment is commenced in the province and the foreign appeal process is
    still running its course: see
Chitel v. Rothbart
(1983), 39 O.R. (2d)
    513 (C.A.); and
Aetna Financial Services v. Feigelman
, [1985] 1 S.C.R.
    2. Nor does the approach preclude a foreign judgment debtor obtaining a stay of
    execution of an Ontario judgment that the creditor obtained after successfully
    suing on a foreign judgment that is still under appeal: see
DSLangdale Two
    LCC v. Diasytek (Canada) Inc.
, [2004] O.T.C. 1133 (S.C.), at paras. 13-16.
[82]

In a particular case, a
    claim based on a foreign judgment may not be discovered under s. 5 of the
Limitations
    Act, 2002
until such time as the judgment creditor knew or ought to have
    known that the judgment debtor had exigible assets in Ontario and could be served
    with process: see
Yugraneft
at paras. 49. 58, 61. As s. 5(1)(b) makes
    clear, the discoverability assessment, including the appropriateness criterion,
    must take account of the factual context and the plaintiffs actual
    circumstances, and I reiterate that each case must be decided on its own facts:
    see
407 ETR
, at paras. 34, 45-46.
[83]

In the present case, I
    conclude that the respondents claim based on the New Jersey judgment was
    discoverable on July 17, 2014, the date the appeal was dismissed in New Jersey.
    The respondent would not have reasonably known that a proceeding in Ontario
    would be an appropriate means to seek to remedy its loss until that date. Thus,
    the limitation period for the respondent to commence its proceeding on the New
    Jersey judgment began on that date. The respondent brought the proceeding on
    May 1, 2015, within the applicable two-year limitation period. Hence, the
    proceeding was not time-barred.
E.

order
[84]

For these reasons, I
    would dismiss the appeal, with costs to the respondent in the amount of
    $9,000.00, inclusive of interest and all applicable disbursements.
Released: G.R.S. January 18, 2017
George R. Strathy
    C.J.O.
I agree G. Pardu
    J.A.
I agree David Brown
    J.A.

[1]
REJA is not exclusive, as s. 8 provides that [N]othing in this Act deprives
    any judgment creditor of the right to bring an action for the recovery of the
    amount of a judgment instead of proceeding under this Act. It would appear,
    therefore, that the judgment creditor can either bring a proceeding on the
    foreign judgment or proceed under REJA.


[2]

The decision of Murray J. is unreported. However, it is
    discussed by Weiler J.A. in the context of a motion to lift a stay pending its
    appeal to this court. See
SA Horeca Financial Services v. Light
, 2014
    ONCA 811.
