Lax v. Lax
[Indexed as: Lax v. Lax]
75 O.R. (3d) 482
[2004] O.J. No. 5146
Docket: C39635
Ontario Court of Appeal
Laskin, Feldman and Armstrong JJ.A
December 21, 2004
Conflict of laws -- Foreign judgment -- Enforcement -- Foreign judgment constituting simple contract debt -- Six- year limitation period in s. 45(1)(g) of Limitations Act applying to actions to enforce foreign judgment -- Limitations Act, R.S.O. 1990, c. L.15, s. 45(1)(g).
Limitations -- Foreign judgments -- Foreign judgment constituting simple contract debt -- Six-year limitation period in s. 45(1)(g) of Limitations Act applying to actions to enforce foreign judgment -- Limitations Act, R.S.O. 1990, c. L.15, s. 45(1)(g).
NOTE: The catchlines above relate to a decision of the Court of Appeal. An appeal to the court (Laskin, Feldman and Armstrong JJ.A.) on the rehearing was dismissed on December 21, 2004 ONCA 15466, 2004, 70 O.R. (3d) 520. The endorsement of the court was as follows:
Barry Gaspell, for appellants.
Michael J. Reid, for respondent.
[page484]
[1] BY THE COURT: -- In our reasons released in April 2004, this panel decided two issues:
The limitation period under the former Limitations Act, R.S.O. 1990 c. L.15 for enforcing a foreign judgment is six years, not 20 years; and
The discoverability principle applies to s. 48 of the former Act; and whether, on the facts of this case, it has the effect of extending the six-year limitation period raises a genuine issue for trial.
[2] Following the release of the panel's reasons, counsel for the appellants wrote to the court, submitting that we had decided the second issue in the case on a legal basis not raised by the parties. Specifically, the appellants submitted that the court had decided the discoverability issue under s. 48 of the former Limitations Act, when that section was not referred to by the parties. The panel agreed to a limited oral rehearing to give the parties an opportunity to address this issue.
[3] On the rehearing, counsel for the appellants agreed that section 48 is in issue in this case and that the discoverability principle applies to s. 48. However, the appellants argued that on the facts disclosed by the record, together with the proposed fresh evidence tendered on the appeal, the discoverability principle had no application because the respondent knew or ought to have known, through the knowledge of her California lawyer, that the appellants lived in Ontario at the relevant time. In making this submission the appellants relied heavily on the declaration of the respondent's California lawyer, a declaration [page483] made contemporaneously with the California judgment, and included in the appellants' proposed fresh evidence.
[4] This argument was fully presented on the original appeal. At paras. 37-41 of the reasons, the panel addressed this argument. We found no basis to interfere with the trial judge's decision that there was a genuine issue for trial regarding:
-- the extent and dates of the appellants' residence in Toronto at the relevant times;
-- the knowledge of the respondent and her California lawyer regarding the appellants' whereabouts; and
-- the actions of the appellants in concealing that information, including their address, from the respondent. (See Boulton v. Langmuir (1897), 24 O.A.R. 618 at pp 624 and 627.)
[5] For example, we note that though in one document the appellants claimed to be living in Ontario, in another they claimed to be living in Mexico or Ontario, and in yet another claimed to be living in Israel. In short, as counsel for the respondent pointed out, even after June 1992, the appellants were moving from place to place. Whether, in these circumstances, the respondent knew or ought to have known the appellants were living in Ontario before November 1995 (which was six years before the respondent issued her Ontario claim) raises an issue that should be tried. That is what we concluded last April. We see no grounds to reconsider that conclusion.
[6] The appeal on the rehearing is dismissed with costs. If the parties cannot agree on the amount of costs, the respondent may submit a bill with brief submissions and the appellant may make brief submissions in response.