Court File and Parties

COURT FILE NO.: CV-22-000189-00 DATE: 20231023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SANDRA MAY GREGG, FORMERLY SANDRA MAY THURSTON Applicant – and – LLOYD DAVID WINSTON THURSTON Respondent

Counsel: Robert J. Reynolds, for the Applicant Barrie M. Hayes, for the Respondent

HEARD: August 10, 2023

REASONS FOR DECISION – LIMITATION PERIOD / DOCTRINE OF LACHES

Muszynski J.

Overview

[1] When Sandra Gregg and Lloyd Thurston were engaged to be married, they entered into an agreement to purchase vacant property in Prince Edward County (the “PEC Property”). The agreement states that both Ms. Gregg and Mr. Thurston were to be listed on title. In 1973, after 19 months of marriage, Ms. Gregg and Mr. Thurston separated. Shortly after the marriage breakdown, litigation was commenced related to marital property. During the litigation, Ms. Gregg discovered that Mr. Thurston registered the deed of the PEC Property in his name alone, contrary to the terms of the agreement of purchase and sale. In 1979, on the eve of the matrimonial trial, they reached a resolution and entered into a consent judgment (the “Judgment”).

[2] The Judgment provides that the PEC Property was to be sold and the proceeds divided in a manner to be determined by a master. As it turns out, this never happened. The PEC Property was never sold. The proceeds of the sale were never divided in a manner determined by a master.

[3] In 1988, Ms. Gregg initiated a discussion with Mr. Thurston about how to move forward with the Judgment. Mr. Thurston responded in writing wherein he confirmed the Judgment remained outstanding and that action was required, but nothing was done.

[4] In 1990, Ms. Gregg made another attempt to move forward with the sale of the property. Nothing was done.

[5] Over 30 years later, in 2021, Mr. Thurston renewed the discussion through a lawyer’s letter about the best way to implement the Judgment. After failed negotiations, Ms. Gregg brought this application to force compliance with the Judgment – namely, the sale of the PEC Property and the division of assets.

[6] These reasons address the threshold issue of whether the application is barred by either a statutory limitation period or the doctrine of laches.

[7] For the reasons that follow, I find that Ms. Gregg’s application is not barred.

Issues

I. Does a statutory limitation period bar the application? II. Does the doctrine of laches bar the application? III. What, if anything, is the impact of Mr. Thurston’s letters?

Analysis

I. Does a statutory limitation period bar the application?

[8] Limitation periods are creatures of statute. [1] Under the current limitation legislation, there is no limitation period in respect of proceedings to enforce an order of a court, which includes a judgment. [2] However, at the time of the Judgment, s. 45(1) of The Limitations Act, R.S.O. 1970, c. 246, s. 45(1) prescribed a 20-year limitation period for “an action upon a judgment”. [3] The parties take the position that this 20-year limitation period applies to the Judgment. I disagree.

[9] The Supreme Court of Canada has confirmed that where there is ambiguity with respect to the application of a limitation period, the plaintiff should be given the benefit of the doubt. [4] In my view, it is far from clear that the Judgment is subject to any statutory limitation period. Accordingly, I find that there is no limitation period that bars the subject application.

[10] It is necessary to examine the nature of the Judgment to appreciate how I arrive at this conclusion.

[11] The Judgment directs that the PEC Property be sold, the proceeds of the sale to be paid into court and divided in accordance with the rights of the parties as determined by a master. There is no final determination of the rights of the parties. The Judgment was registered on title but is not capable of being “acted upon” by traditional enforcement mechanisms such as by filing a writ of execution.

[12] As noted in The Law of Limitations, the Ontario Law Reform Commission has identified three categories of actions on judgments: (1) actions on foreign judgments; (2) proceedings, amounting to “actions”, such as an application for leave to issue execution, which are brought to enforce judgments; and (3) actions on judgment debts. [5]

[13] The Judgment clearly does not fall into the first or third category. In my view, neither does it fall into the second category identified by the Ontario Law Reform Commission.

[14] The Judgment was granted in the context of a matrimonial court file. The matrimonial court file was incomplete in the sense that there had not been a final adjudication of the issue of the division of the marital assets.

[15] The fact that a new application was issued, instead of moving within the old matrimonial court file, should not prejudice Ms. Gregg. There is evidence in the application record that the local court office advised counsel that it would be preferable for a fresh application to be commenced instead of trying to re-activate the existing matrimonial court file. The direction from the court office is understandable in terms of efficiency and should not be fatal to Ms. Gregg’s position.

[16] The parties could not locate any caselaw where a “judgment”, in the context of s. 45(1) of the Limitations Act, 1970, was anything aside from a money judgment that created a debt. This makes sense. Further corroboration for the notion that the reference to “judgment” in s. 45(1) means a money judgement is found in s. 50(1) of the Limitations Act, 1970. Section 50(1) extends the limitation period for actions to enforce unpaid judgments by 20 years from the date the judgment was acknowledged in writing by the person liable or the date on which partial payment was made.

[17] In a recent decision, Braid J. examined whether an enforcement proceeding brought in 2020, in relation to a 1999 judgment, was statute-barred by the 1990 Limitations Act, which contains identical language establishing a 20-year limitation period for “an action upon a judgment”. [6] Braid J. wrote the following:

One may sue on a judgment within the limitation period to obtain a new judgment, in order to recommence the running of the twenty-year limitation period…

It is rare for a person to sue on a judgment to recommence the running of the limitation period. An action to sue on a judgment could not be based on the original cause of action because the second claim would be barred for res judicata. When suing on a judgment, the cause of action for the second claim would inevitably be based on the defendant’s non-payment of the judgment. [7] [Citations omitted.]

[18] Again, the reference to “actions on a judgment” has been interpreted as related to enforcement proceedings for non-payment of a money judgment.

[19] The Judgment in this case, I find, is a different beast. It is final in the sense that it compels the sale of the property, but incomplete in the sense that it does not determine the outcome of the litigation or create a fixed liability owing from one spouse to the other.

[20] Not being made aware of any other statutory limitation period that might bar the application and given my finding that there is ambiguity as to whether the 20-year limitation period in the Limitations Act, 1970 applies, I find that there is no limitation period.

II. Does the doctrine of laches bar the application?

[21] The doctrine of laches has no application in this case.

[22] Mr. Thurston relies on the equitable defence of laches which, he submits, acts to bar the application due to Ms. Gregg’s delay in enforcing the Judgment. The doctrine of laches can be invoked to bar equitable claims advanced tardily, but not in the absence of a claim for equitable relief. [8]

[23] Ms. Gregg’s application to implement the terms of the Judgment is not an equitable claim but rather a legal one. The Judgment provided for the sale of the property and ultimately the division of family assets based on the rights of the parties and pursuant to The Married Women’s Property Act, R.S.O. 1970, c. 262, [9] and The Family Law Reform Act, 1978, S.O. 1978, c. 2. [10] In this application, Ms. Gregg seeks legal relief. On that basis, the doctrine of laches is unavailable.

III. What, if anything, is the impact of Mr. Thurston’s letters?

[24] Mr. Thurston sent two letters to Ms. Gregg – one in 1988 and another in 2021 - wherein he confirmed that the Judgment remained outstanding, and action was required.

[25] The letter dated September 17, 1988, was handwritten by Mr. Thurston and addressed to Ms. Gregg’s lawyer at the time. It is not marked “without prejudice”. In this correspondence, Mr. Thurston agreed that there was no “reason for extensive and expensive legal proceedings to settle something already resolved by court Order.” Mr. Thurston proposed an offer to settle.

[26] The letter dated November 29, 2021, was sent to Ms. Gregg directly from then counsel for Mr. Thurston, Peter Robertson. It is not marked “without prejudice”. This correspondence states, in part:

We act for and on behalf of Lloyd Thurston. He would like to finally resolve your 1973 separation.

I understand there was 1979 Judgment for the listing and sale of his property with the proceeds to be paid into Court until your family matter resolved. The property was subsequently listed but no offers were made. The amount of your entitlement to any funds was never actually determined.

The 2021 letter also contains a settlement proposal.

[27] On a preliminary basis, Mr. Thurston objects to the admission of his two letters into evidence on the basis that they are subject to settlement privilege.

[28] Mr. Thurston’s objection must fail. The 1988 letter was attached as an exhibit to Mr. Thurston’s affidavit filed in his responding application record. While the 2021 letter was not filed as part of Mr. Thurston’s responding record, his affidavit sets out the contents of that letter, claiming that it was not attached because he did not have a copy. The 2021 letter was ultimately filed by way of reply by Ms. Gregg.

[29] Mr. Thurston cannot purport to rely on these communications for the application and yet object to their consideration for the purpose of this preliminary motion. I find that by including the 1988 letter and details about the 2021 letter in his responding application record, Mr. Thurston has waived any privilege associated with that communication.

[30] Having already determined that the action is not barred by the application of any limitations period or the doctrine of laches, it is not strictly necessary to resolve the ultimate impact of Mr. Thurston’s letters on this litigation. I query, however, whether Mr. Thurston is estopped from raising a limitations defence considering these letters. Since this issue was not raised at the hearing, I will consider it no further.

Conclusion

[31] I find that Ms. Gregg’s application is not barred by either a limitation period or the doctrine of laches. Accordingly, the application may proceed. I am not seized.

Costs

[32] Costs are reserved. If parties cannot agree on costs of the motion, cost submissions (three pages or less) may be filed with the Belleville trial coordinator in accordance with the following schedule: Ms. Gregg shall file her cost submission on or before November 3, 2023; and Mr. Thurston shall file his responding cost submissions on or before November 17, 2023, after which time costs shall be decided based on the material filed.

Muszynski J. Released: October 23, 2023