872899 Ontario Inc. v. Iacovoni, (1998) 112 O.A.C. 280 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: July 03, 1998
• Jurisdiction: Ontario
• Citations: (1998), 112 O.A.C. 280 (CA)

872899 Ont. Inc. v. Iacovoni (1998), 112 O.A.C. 280 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.024

872899 Ontario Inc. (plaintiff/appellant) v. Paul Iacovoni and Jacqueline Iacovoni (defendants/respondents)

(C27420)

Indexed As: 872899 Ontario Inc. v. Iacovoni

Ontario Court of Appeal

McKinlay and Austin, JJ.A., and Dunnet, J.(ad hoc)

July 3, 1998.

Summary:

Purchasers of a new home were financially unable to complete the purchase on the May 1990 closing date. The vendor advised that the purchasers breached the contract, for­feited their deposit and would be liable for any loss on the resale of the property. The vendor ran into financial difficulty. More than six years later, the assignee of the vendor's receivables sued the purchasers. The purchasers pleaded that the vendor's corpor­ate status had lapsed; that the vendor's assignee had no status to commence or prosecute the action. The vendor's corporate status was revived in September 1996. The purchasers pleaded that the six year limita­tion period expired in June 1996, before corporate status was revived. The vendor's position was that the contract was under seal, was therefore a "specialty" and the ap­plicable limitation period was 20 years. The purchasers moved to dismiss the action because, inter alia, the claim was statute-barred.

The Ontario Court (General Division), in a judgment reported 26 O.T.C. 68, dismissed the action. The agreement was not "under seal" and was, accordingly, not a "specialty" within the meaning of the Limitations Act. The six year limitation period applied and the action was statute-barred. The vendor appealed.

The Ontario Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 2051

Actions in contract - Actions for debt - What constitutes a specialty - At issue was whether a standard purchase and sale agreement was "under seal" and therefore a "specialty" within the meaning of the Limitation Act - If the contract was a specialty, a 20 year limitation applied rather than six years - The standard form stated that it was "signed, sealed and delivered" - However, there was no evi­dence of any seal or any facsimile of a seal anywhere on the document - The Ontario Court of Appeal affirmed that the agree­ment was not "under seal" and was not a "specialty" - The words "signed, sealed and delivered", without the affixation of a seal, merely anticipated the act of sealing - See paragraphs 1 to 25.

Limitation of Actions - Topic 2051

Actions in contract - Actions for debt - What constitutes a specialty - The Ontario Court of Appeal held that while you could not have a "specialty" without the contract being "under seal", not every sealed con­tract was a specialty - It was the nature of the claim, not only the formalities of exe­cution, which determined whether an ac­tion was based on a specialty - The court opined that an agreement under seal for the purchase and sale of a house should not be regarded for limitation pur­poses as any­thing other than what it really was, a simple contract and not a specialty - See paragraphs 26 to 31.

Words and Phrases

Specialty contract - The Ontario Court of Appeal discussed what constituted a "spe­cialty contract" within the meaning of s. 45(1)(b) of the Limitations Act, R.S.O. 1990, c. L-15.

Cases Noticed:

Royal Bank of Canada v. Kiska, [1967] 2 O.R. 379 (C.A.), refd to. [para. 17].

South-West Oxford (Township) v. Bailak (1990), 75 O.R.(2d) 360 (S.C.), refd to. [para. 19].

R. v. Williams, [1942] A.C. 541 (P.C.), refd to. [para. 27].

Suburban Construction Ltd. v. Newfound­land and Labrador Housing Corp. (1987), 66 Nfld. & P.E.I.R. 347; 204 A.P.R. 347; 19 C.P.C.(2d) 43 (Nfld. C.A.), refd to. [para. 28].

Alton Renaissance I et al. v. Talamanca Management Ltd. et al. (1996), 88 O.A.C. 41 (Div. Ct.), refd to. [para. 30].

Statutes Noticed:

Limitations Act, R.S.O. 1990, c. L-15, sect. 45(1)(b), sect. 45(1)(g) [para. 13].

Authors and Works Noticed:

Dukelow and Nuse, Dictionary of Cana­dian Law (2nd Ed. 1995) [para. 15].

Mew, G., The Law of Limitations (1991), p. 139 [para. 26].

Counsel:

Howard D. Gerson, for the appellant;

Theresa R. Simone, for the respondents.

This appeal was heard on February 27, 1998, before McKinlay and Austin, JJ.A., and Dunnet, J.(ad hoc), of the Ontario Court of Appeal.

On July 3, 1998, Austin, J.A., released the following judgment for the Court of Appeal.