Withdrawn Uniform Acts

Uniform Limitation of Actions Act (1976)

(1962 Consolidation, page 199; Amended 1976 Proceedings, page 147)

Interpretation

1. In this Act,

(a) "action" means any civil proceeding, including any civil proceeding by or against the Crown;

(b) "assurance" means any transfer, deed or instrument, other than a will, by which land may be conveyed or transferred;

(c) "disability" means disability arising from infancy or unsoundness of mind;

(d) "heirs" includes the persons entitled beneficially to the real estate of a deceased intestate;

(e) "land" includes all corporeal hereditaments, and any share or any freehold or leasehold estate or any interest in any of them;

(f) "mortgage" includes charge, "mortgagor" includes chargor, and "mortgagee" includes chargee;

(g) "proceedings" includes action, entry, taking of possession, distress and sale proceedings under an order of a court or under a power of sale contained in a mortgage or conferred by statute;

(h) "rent" means a rent service or rent reserved upon a demise;

(i) "rent charge" includes all annuities and periodical sums of money charged upon or payable out of land.


PART I

General

Limitation periods

2. (1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned:

(a) actions for penalties imposed by any statute brought by

(i) any informer suing for himself alone or for the Crown as well as for himself, or

(ii) any person authorized to sue for the same, not being the person aggrieved,

within one year after the cause of action arose;

(b) actions for penalties, damages or sums of money in the nature of penalties, damages or sums of money in the nature of penalties given by any statute

(i) to the Crown or the person aggrieved, or

(ii) partly to one and partly to the other,

within two years after the cause of action arose;

(c) actions of defamation, whether libel or slander,

(i) within two years of the publication of the libel or the speaking of the slanderous words, or

(ii) where special damage is the gist of the action, within two years after the occurrence of such damage;

(d) actions for

(i) trespass to the person, assault, battery, wounding or other injury to the person, whether arising from an unlawful act or from negligence, or

(ii) false imprisonment,

(iii) malicious prosecution, or

(iv) seduction,

within two years after the cause of action arose;

(e) actions for

(i) trespass or injury to real property or chattels, whether direct or indirect, and whether arising from an unlawful act or from negligence, or

(ii) for the taking away, conversion or detention of chattels,

within six years after the cause of action arose;

(f) actions for

(i) the recovery of money (except in respect of a debt charged upon land), whether recoverable as a debt or damages or otherwise, and whether on a recognizance, bond, covenant or other specialty or on a simple contract, express or implied, and

(ii) an account or for not accounting,

within six years after the cause of action arose;

(g) actions grounded on fraudulent misrepresentation, within six years from the discovery of the fraud;

(h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action;

(i) actions on a judgment or order for the payment of money, within ten years after the cause of action thereon arose; and

(NOTE: In the Statutes of Manitoba, 1931, c. 30, the following words have been added to the clause corresponding with clause (i): "but no such action shall be brought upon a judgment or order recovered upon any previous judgment or order.")

(j) any other action not in this Act or any other Act specifically provided for, within six years after the cause of action arose.

Special periods prevail

(2) Nothing in subsection 1 extends to any action where the time for bringing the action is by statute specifically limited.

Concealment by fraud

3. When the existence of a cause of action has been concealed by the fraud of the person setting up this Part or Part II as a defence, the cause of action shall be deemed to have arisen when the fraud was first known or discovered.

Independent periods for account items

4. No claim in respect of an item in an account that arose more than six years before the commencement of the action is enforceable by action by reason only of some other claim in respect of another item in the same account having arisen within six years next before the commencement of the action.

Claimant under disability

5. If a person entitled to bring any action mentioned in 2(1 )(c) to (i) is under disability at the time the cause of action arises, he may bring the action,

(a) within the time hereinbefore limited with respect to such action; or

(b) at any time within two years after he first ceased to be under disability.

Promises, acknowledgments

6. (1) Where a person who is or, but for the effluxion of time, would be liable to an action on a judgment or on an order for the payment of money or for the recovery of money as a debt, or his agent in that behalf,

(a)conditionally or unconditionally promises his creditor or the agent of the creditor in writing signed by the debtor or his agent to pay the judgment or order for payment or debt;

(b)gives a written acknowledgment of the judgment or order for payment or debt signed by the debtor or his agent to his creditor or the agent of the creditor; or

(c)makes a part payment on account of the principal of the judgment or order for payment or debt or interest thereon to his creditor or the agent of the creditors

then, subject to section 2(1)(i), the action may be brought within six years from the date of the promise, acknowledgment or part payment, as the case may be, notwithstanding that the action would otherwise be barred under this Act.

Idem

(2) A written acknowledgment of a judgment or order for payment or debt or a part payment on account of the principal of the judgment or order for payment or debt or interest thereon, has full effect

(a)whether or not a promise to pay can be implied therefrom; and

(b) whether or not it is accompanied by a refusal to pay.

Joint obligations

7. Where there are two or more

(a)joint debtors, joint contractors, joint obligors or joint convenantors; or

(b)executors or administrators of any debtor, contractor, obligor or covenantor,

no such joint debtor, joint contractor, joint obligor or joint convenantor, or executor or administrator loses the benefit of this Act so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed, or by reason of any payment of any principal or interest made, by any other or others of them.

Actions against joint debtors

8. In actions commenced against two or more such joint debtors, joint contractors, joint obligors or joint covenantors, or executors or administrators, if it appears at the trial or otherwise that the plaintiff, though barred by this Act, as to one or more of such joint debtors, joint contractors, joint obligors or joint convenantors, or executors or administrators, is nevertheless entitled to recover against any other or others of the defendants by virtue of a new acknowledgment, promise or payment, judgment shall be given for the plaintiff as to the defendant or defendants against whom he is entitled to recover, and for the other defendant or defendants against the plaintiff.

Endorsements by payees

9. No endorsement or memorandum of any payment written or made upon any promissory note, bill of exchange or other writing, by or on behalf of the person to whom the payment has been made, shall be deemed sufficient proof of the payment so as to take the case out of the operation of this Act.

Counterclaims

10. This Part applies to the case of any claim of the nature hereinbefore mentioned, alleged by way of counterclaim or set-off on the part of any defendant.


PART II

Charges on Land, Etc.

Proceedings to recover money

11. (1) No proceedings shall be taken to recover

(a) any rent charge;

(b) any sum of money,

(i) secured by any mortgage, or

(ii) otherwise charged upon or payable out of any land or rent charge,

but within ten years next after a present right to recover the same accrued to some person capable of giving a discharge therefor or a release thereof, unless prior to the expiry of such ten years;

(c) some part of the rent charge or sum of money or some interest thereon has been paid by a person bound or entitled to make a payment thereof, or his agent in that behalf, to a person entitled to receive the same, or his agent; or

(d) some acknowledgment in writing of the right to such rent charge or sum of money signed by any person so bound or entitled, or his agent in that behalf, has been given to a person entitled to receive the same, or his agent,

and in such case no action shall be brought but within tend years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was made or given.

Idem

(2) In the case of a reversionary interest in land, no right to recover the sum of money charged thereon shall be deemed to accrue until the interest has fallen into possession.

(3) (If it is intended to limit charges created by writs of execution, a special clause should be inserted here which would probably vary in different jurisdictions.)

Money under agreement for sale

12. No proceedings shall be taken to recover any sum of money payable under an agreement for the sale of land but within ten years after a present right to recover the same accrued to some person entitled to receive the same, or capable of giving a release thereof, unless prior to the expiry of such ten years

(a)some part of the sum of money or some interest thereon has been paid by a person bound or entitled to make a payment thereof or his agent in that be half to a person entitled to receive the same or his agent; or

(b)some acknowledgment in writing of the right to receive such sum of money signed by any person so bound or entitled or his agent in that behalf has been given to a person entitled to receive the same or his agent,

and in such case no action shall be brought but within ten years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was made or given.

Arrears of rent

13. (1) No arrears of rent, or of interest in respect of any sum of money to which section 11 applies or any damages in respect of such arrears shall be recovered by any proceeding, but within six years, next after a present right to recover the same accrued to some person capable of giving a discharge therefor or a release thereof unless, prior to the expiry of such six years,

(a)some part of the arrears has been paid by a person bound or entitled to make a payment thereof or his agent in that behalf to a person entitled to receive the same or his agent; or

(b) some acknowledgment in writing of the right to the arrears signed by a person so bound or entitled or his agent in that behalf has been given to a person entitled to receive the arrears or his agent,

and in such case no proceeding shall be taken but within six years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was made or given.

Actions for redemption by mortgagors

(2) Subsection (1) does not apply to an action for redemption or similar proceedings brought by a mortgagor or by a person claiming under him.

Subsequent mortgagee

14. Where any prior mortgagee has been in possession of any land within one year next before an action is brought by any person entitled to a subsequent mortgage on the same land, the person entitled to the subsequent mortgage may recover in such action the arrears of interest that have become due during the whole time the prior mortgagee was in such possession or receipt, although that time may have exceeded such term of six years.


PART III

Land

General Principle

Recovery of land

15. No person shall take proceedings to recover any land but

(a) within ten years next after the time at which the right to do so first accrued to some person through whom he claims (hereinafter called "predecessor"); or

(b) if such right did not accrue to a predecessor then within ten years next after the time at which such right first accrued to the person taking the proceedings (hereinafter called "claimant").

Special Cases

Dispossession of claimant

16. Where the claimant or a predecessor,

(a) has in respect of the estate or interest claimed been in possession of the land or in receipt of the profits thereof; and

(b) has while entitled thereto,

(i) been dispossessed, or

(ii) discontinued such possession or receipt,

the right to take proceedings to recover the land shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession or at the last time at which any such profits were so received.

Recovery of land by claimant of interest of deceased person

17. Where the claimant claims the estate or interest of a deceased predecessor who was

(a) in possession of the land or in receipt of the profits thereof in respect of the same estate or interest at the time of his death; and

(b) the last person entitled to such estate or interest who was in such possession or receipt,

the right to take proceedings to recover the land shall be deemed to have first accrued at the time of the death of the predecessor.

Alienation

18. Where the claimant claims in respect of an estate or interest in possession, granted, appointed or otherwise assured to him or a predecessor by a person being in respect of the same estate or interest in the possession of the land or in receipt of the profits thereof and no person entitled under the assurance has been in such possession or receipt the right to take proceedings to recover the land shall be deemed to have first accrued at the time at which the claimant or his predecessor became entitled to such possession or receipt by virtue of the assurance.

Forfeiture

19. Where the claimant or the predecessor becomes entitled by reason of forfeiture or breach of condition, then the right to take proceedings to recover the land shall be deemed to have first accrued whenever the forfeiture was incurred or the condition was broken.

Future Estates

Owner of particular estate

20. Where

(a) the estate or interest claimed has been

(i)an estate or interest in reversion or remainder, or

(ii) some other future estate or interest, including therein an executory devise;

and

(b) no person has obtained the possession of the land or is in receipt of the profits thereof in respect of such estate or interest,

the right to take proceedings to recover the land shall be deemed to have first accrued at the time at which the estate or interest became an estate or interest in possession, by the determination of any estate or estates in respect of which the land has been held or the profits thereof have been received notwithstanding the claimant or the predecessor has at any time previously to the creation of the estate or estates which has determined been in the possession of the land or in receipt of the profits thereof.

Owner of particular estate out of possession

21. If the person last entitled to any particular estate on which any future estate or interest was expectant was not in possession of the land or in receipt of the profits thereof at the time when his interest determined, no proceedings to recover the land shall be taken by any person becoming entitled in possession to a future estate or interest but

(a) within ten years next after the time when the right to take proceedings first accrued to the person whose interest has so determined; or

(b) within five years next after the time when the estate of the person becoming entitled in possession has become vested in possession,

whichever of these two periods is the longer.

Settlement while statute is running

22. If the right to take proceedings to recover the land has been barred, no proceedings shall be taken by any person afterwards claiming to be entitled to the same land in respect of any subsequent estate or interest under any will or assurance executed or taking effect after the time when a right to take proceedings first accrued to the owner of the particular estate whose interest has so determined.

Successive estates in same person

23. When

(a) the right of any person to take proceedings to recover any land to which he may have been entitled for an estate or interest in possession entitling him to take proceedings has been barred by the determination of the period which is applicable in such case; and

(b) such person has at any time during the said period been entitled to any other estate, interest, right or possibility in reversion, remainder or otherwise in or to the same land,

no proceedings shall be taken by him or any person claiming through him to recover the land in respect of such other estate, interest, right or possibility, unless in the meantime the land has been recovered by some person entitled to an estate, interest or right which has been limited or taken effect after or in defeasance of the estate or interest in possession.

Accrual of right on forfeiture action

24. When

(a) the right to take proceedings to recover any land first accrued to a claimant or a predecessor by reason of any forfeiture or breach of condition, in respect of an estate or interest in reversion or remainder; and

(b) the land has not been recovered by virtue of such right,

the right to take proceedings shall be deemed to have first accrued at the time when the estate or interest became an estate or interest in possession.

Landlord and Tenant

Wrongful receipt of rent

25. Where

(a) a person is in possession of land, or in receipt of the profits thereof by virtue of a lease in writing by which a rent amounting to the yearly sum or value of four dollars or upwards is reserved; and

(b) the rent reserved by the lease has been received by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease; and

(c) no payment in respect of the rent reserved by the lease has afterwards been made to the person rightfully entitled thereto,

the right of the claimant or his predecessor to take proceedings to recover the land after the determination of the lease shall be deemed to have first accrued at the time at which the rent reserved by the lease was first so received by the person wrongfully claiming as aforesaid and no such right shall be deemed to have first accrued upon the determination of the lease to the person rightfully entitled.

Tenancy from year to year

26. Where any person is in possession of any land or in receipt of the profits thereof as tenant from year to year, or other period, without any lease in writing, the right of the claimant or his predecessor to take proceedings to recover the land shall be deemed to have first accrued

(a) at the determination of the first of such years or other periods; or

(b) at the last time (prior to his right to take proceedings being barred under any other provisions of this Act) when any rent payable in respect of such tenancy was received by the claimant or his predecessor or the agent of either,

whichever last happens.

Tenancies at will

27. (1) Where a person is in possession of land or in receipt of the profits thereof as tenant at will, the right of the claimant or his predecessor to take proceedings to recover the land shall be deemed to have first accrued either

(a) at the determination of the tenancy; or

(b) at the expiration of one year next after its commencement,

at which time, if the tenant was then in possession, the tenancy shall be deemed to have been determined.

Idem

(2) No mortgagor or cestui que trust under an express trust shall be deemed to be a tenant at will to his mortgagee or trustee within the meaning of this section.

Concealed fraud

28. (1) In every case of concealed fraud on the part of

(a) the person setting up this Part as a defence; or

(b) some other person through whom such first mentioned person claims,

the right of any person to bring an action for the recovery of any land of which he or any person through whom he claims may have been deprived by the fraud shall be deemed to have first accrued at and not before the time at which the fraud was or with reasonable diligence might have been first known or discovered.

Idem

(2) Nothing in subsection (1) enables an owner of land to bring an action for the recovery of the land, or for setting aside any conveyance thereof, on account of fraud against any purchaser in good faith for valuable consideration,

(a) who did not assist in the commission of the fraud, and

(b) who at the time that he made the purchase, did not know, and had no reason to believe, that any such fraud had been committed.

Acknowledgments of title

29. When any acknowledgment in writing of the title of a person entitled to any land signed by the person in possession of the land or in receipt of the profits thereof or his agent in that behalf has been given to him or his agent prior to his right to take proceedings to recover the land having been barred under the provisions of this Act, then

(a) the possession or receipt of or by the person by whom the acknowledgment was given shall be deemed, according to the meaning of this Act, to have been the possession or receipt of or by the person to whom or to whose agent such acknowledgment was given at the time of giving the same; and

(b) the right of the last mentioned person, or of any per-s son claiming through him, to take proceedings shall be deemed to have first accrued at and not before the time at which the acknowledgment, or the last of the acknowledgments, if more than one, was given.

(NOTE: In any province in which there are now in force limitation provisions relating to dower and estates tail (see, e.g., R.S.O. 1927, c. 106, 88. 25-30), the appropriate provisions may be added here.)


PART IV

Mortgages of Real and Personal Property

Redemption

30. (1) When a mortgagee or a person claiming through a mortgagee

(a) has obtained the possession of any property real or personal comprised in a mortgage; or

(b) is in receipt of the profits of any land therein comprised,

the mortgagor or any person claiming through him shall not bring any action to redeem the mortgage but within ten years next after the time at which the mortgagee or a persons claiming through the mortgagee obtained such possession or first received any such profits unless prior to the expiry of such ten years an acknowledgment in writing of the title of the mortgagor or of his right to redeem is given to the mortgagor or some person claiming his estate or interest or to the agent of such mortgagor or person signed by the mortgagee or the person claiming through him or the agent in that behalf of either of them; and in that case, the action shall not be brought but within ten years next after the time at which the acknowledgment or the last of the acknowledgments, if more than one was given.

Idem

(2) Where there is more than one mortgagor or more than one person claiming through the mortgagor or mortgagors, the acknowledgment, if given to any of the mortgagors or persons or his or their agent, is as effectual as if the same had been given to all the mortgagors or persons.

Idem

(3) Where there is more than one mortgagee or more than one person claiming the estate or interest of the mortgagee or mortgagees, an acknowledgment signed by one or more of such mortgagees or persons or his or their agent in that behalf is effectual only as against

(a) the party or parties signing as aforesaid;

(b) the person or persons claiming any part of the mortgage money or property by, through or under him or them; and

(c) any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests,

and does not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any undivided or divided part of the money or property.

Idem

(4) Where such of the mortgagees or persons aforesaid as have given the acknowledgment

(a) are entitled to a divided part of the property comprised in the mortgage or some estate or interest therein; and

(b) are not entitled to any ascertained part of the mortgage money,

the mortgagor or mortgagors are entitled to redeem the same divided part of the property on payment with interest of the 4 part of the mortgage money which bears the same proportion to the whole of the mortgage money as the value of the divided part of the property bears to the value of the whole of the property comprised in the mortgage.

Actions by mortgagees fr foreclosure or sale

31. No mortgagee or person claiming through a mortgagee shall take any proceedings for foreclosure or sale under any mortgage of real or personal property or to recover the property mortgaged but

(a) within ten years next after the right to take the proceedings first accrued to the mortgagee; or

(b) if the right did not accrue to the mortgagee, then within ten years after the right first accrued to a person claiming through the mortgagee.

Accrual of right of action

32. When any person bound or entitled to make payment of the principal money or interest secured by a mortgage of property real or personal or his agent in that behalf, at any time prior to the expiry of ten years from the accrual of the right to take proceedings for foreclosure or sale or to take proceedings to recover the property, pays any part of such money or interest to a person entitled to receive the same, or his agent, the right to take proceedings shall be deemed to have first accrued

(a) at (and not before) the time at which the payment or the last of the payments, if more than one, was made; or

(b) if any acknowledgment of the nature described in section 29 was given at any time prior to the expiry of ten years from the accrual of the right to take proceedings, then at the time at which the acknowledgment or the last of the acknowledgments, if more than one, was given.


PART V

Agreements for the Sale of Land

Actions by purchasers under agreements

33. (1) No purchaser of land or any person claiming through him shall bring any action in respect of the agreement for the sale thereof but

(a) within ten years after the right to bring the action first accrued to the purchaser; or

(b) if the right did not accrue to the purchaser, then within ten years after the right first accrued to a person claiming through the purchaser.

Idem

(2) When, at any time prior to the expiry of ten years from the accrual of the right to bring an action in respect of an agreement for sale of land,

(a) any person bound or entitled to make payment of the purchase money or his agent in that behalf, pays any part of the money payable under the agreement of sale to a person entitled to receive the money, or his agent; or

(b) any acknowledgment in writing of the right of the purchaser or person claiming through him to the land, or to make such payment, was given to the purchaser or person claiming through him or to the agent of such purchaser or person signed by the vendor or the person claiming through him or the agent in that behalf of either of them,

then the right to take proceedings shall be deemed to have first accrued at (and not before) the time at which the payment or the last of the payments, if more than one, was made, or the time at which the acknowledgment or the last of the acknowledgments, if more than one, was given.

Actions by vendors

34. No vendor of land or person claiming through him shall take any proceedings

(a) for cancellation, determination or rescission of the agreement for the sale of the land;

(b) for foreclosure or sale thereunder; or

(c) to recover the land

but within ten years after the right to take the proceedings first accrued to the vendor, or if the right did not accrue to the vendor, then within ten years after the right first accrued to a person claiming through the vendor.

Accrual of right of action

35. When, at any time prior to the expiry of ten years from the accrual of the right to take the proceedings mentioned in section 34,

(a) any person bound or entitled to make payment of the purchase money or his agent in that behalf, pays any part of the money payable under the agreement of sale to a person entitled to receive the same, or his agent; or

(b) any acknowledgment in writing of the right of the vendor or person claiming through him to the land or to receive the payment was given to the vendor or person claiming through him or to the agent of such vendor or person signed by the purchaser or the person claiming through him or the agent in that behalf of either of them,

then the right to take proceedings shall be deemed to have first accrued at (and not before) the time at which the payment or last of the payments, if more than one, was made, or the time at which the acknowledgment or last of the acknowledgments, if more than one was given.


PART VI

Conditional Sales of Goods

Interpretation

36. In this Part,

(a) "buyer" means the person who buys or hires goods by a conditional sale;

(b) "conditional sale" means

(i) any contract for the sale of goods under which

(A) possession is or is to be delivered to the buyer, and

(B) the property in the goods is to vest in him at a subsequent time upon payment of the whole or part of the price or the performance of any other condition; or

(ii) any contract for the hiring of goods by which it is agreed that the hirer shall become, or have the option of becoming, the owner of the goods upon full compliance with the terms of the contract;

(c) "goods" means all chattels personal other than things in action or money, and includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale, or under the contract of sale;

(d) "seller" means the person who sells or lets to hire goods by a conditional sale.

Action for sale or recovery of goods

37. No seller shall take any proceedings for the sale of or to recover any goods the subject of a conditional sale but

(a) within ten years after the right to take the proceedings first accrued to the seller; or

(b) if the right did not accrue to the seller, then within ten years after the right first accrued to a person claiming through him.

Accrual of right of action

38. When, at any time prior to the expiry of ten years from the accrual of the right to take the proceedings,

(a) any person bound or entitled to make payment of the price, or his agent in that behalf, pays any part of the price or interest to a person entitled to receive the same, or his agent; or

(b) any acknowledgment in writing of the right of the seller or person claiming through him to the goods or to receive the payment was given to the seller or person claiming through him signed by the buyer or the person claiming through him or the agent in that behalf of either of them,

then the right to take proceedings shall be deemed to have first accrued at (and not before) the time at which the payment or last of the payments, if more than one, was made, or the time at which the acknowledgment or last of the acknowledgments, if more than one, was given.

International Sale of Goods

Interpretation

39. (1) In this section,

(a) "Convention" means the convention set out in the schedule;

(b) "effective date" means the latest of,

(i) the day on which, in accordance with paragraph 1 of Article 44 of the Convention, the Convention enters into force,

(ii) where, at the time of accession to the Convention, the Government of Canada has declared that the Convention extends to the Province, the first day of the month following the expiration of six months after the date on which the Government of Canada deposits with the Secretary General of the United Nations under the Convention the instrument of accession, or

(iii) the first day of the month following the expiration of six months after the date on which the Government of Canada submits to the Secretary General of the United Nations under the Convention a declaration that the Convention extends to the Province.

When Convention rules in force

(2) On, from and after the effective date the convention is in force in the Province and the rules governing the limitation period in the international sale of goods set out in the Convention are law in the Province.

Notice of United Nations

(3) The (Provincial Secretary or other Minister) shall request the Government of Canada to submit a declaration to the Secretary General of the United Nations declaring that the Convention extends to the Province.

Notice in Gazette (4) As soon as the effective date is determined, the (Provincial Secretary or other Minister) shall publish in the Gazette a notice indicating the date that is the effective date for the purposes of this section.

Crown bound

(5) The Crown is bound by this section.


PART VII

Trusts and Trustees

Trustee defined

40. (1) In this section "trustee" includes an executor, an administrator and trustee whose trust arises by construction or implication of law as well as an express trustee and also includes a joint trustee.

Exceptions

(2) No period of limitation prescribed by this Act applies to an action by a beneficiary under a trust, being an action

(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

Actions against trustee(3) Subject to subsection (2), an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued, but the right of action shall be deemed not to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest falls into possession.

Exception

(4) No beneficiary as against whom there would be a good defence under this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.

Action for personal estate

41. Subject to section 40(2),

(a) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or an intestacy, shall be brought after the expiration of ten years from the date when the right to receive the share or interest accrued; and

(b) no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due.

Accrual of recovery rights by cestui que trust

42. (1) Where any property is vested in a trustee upon any express trust, the right of the cestui que trust or any person claiming through him to bring an action against the trustee or any person claiming through him to recover the property, shall be deemed to have first accrued at and not before the time at which it was conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him.

Idem

(2) No action shall be brought to recover

(a) any sum of money or legacy charged upon or payable out of any land or rent charge, though secured by an express trust;

(b) any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable or so secured; or

(c) any damages in respect of such arrears,

except within the time within which the same would be recoverable if there were not any such trust.

Idem

(3) Subsection (2) does not operate so as to affect any claim of a cestui que trust against his trustee for property held on an express trust.


PART VIII

Miscellaneous

Possession

43. (1) No person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon.

(2) No continual or other claim upon or near any land preserves any right of making an entry or distress or bringing an action.

(3) The receipt of the rent payable by any tenant at will, tenant from year to year or other lessee, shall, as against such lessee or any person claiming under him, but subject to the lease, be deemed to be the receipt of the profits of the land for the purposes of this Act.

Expiry of statutory period

44. At the determination of the period limited by this Act to any person for taking proceedings to recover any land, rent charge or money charged on land, the right and title of such person to the land, or rent charge or the recovery of the money out of the land is extinguished.

45. (1) Where a cause of action in respect of the conversion or wrongful detention of a chattel has accrued to a person, and before he recovers possession of the chattel, a further conversion or wrongful detention takes place, no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.

(2) Where

(a) any such cause of action has accrued to a person; and

(b)the period prescribed for bringing that action and for bringing any action in respect of such a further conversion or wrongful detention as aforesaid has expired; and

(c) he has not during that period recovered possession of the chattel,

the title of that person to the chattel is extinguished.

Title of administrator

46. For the purposes of Parts II, III and IV, an administrator claiming the estate or interest of the deceased person of whose property he has been appointed administrator shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration.

Disabilities

47. (1) If at the time at which the right to take any proceedings referred to in Parts II, III or IV first accrued to any person who was under disability, then such person or a person claiming through him may (notwithstanding anything in this Act) take proceedings at any time within six years next after the person to whom the right first accrued first ceased to be under disability or died, whichever event first happened, except that if he died without ceasing to be under disability, no further time to take proceedings shall be allowed by reason of the disability of any other person.

Idem

(2) Notwithstanding subsection 1, no proceedings shall be taken by a person under disability at the time the right to do so first accrued to him or by any person claiming through him, but within thirty years next after that time.

Defendant out of Province

48. In respect of a cause of action as to which the time for taking proceedings is limited by this Act other than those mentioned in section 2(1)(a) and (b), if a person is out of the Province at the time a cause of action against him arises within the Province, the person entitled to the action may bring the same within two years after the return of the first-mentioned person to the Province or within the time otherwise limited by this Act for bringing the action.

Joint debtors

49. (1) Where a person has any cause of action against joint debtors, joint contractors, joint obligors or joint covenantors, he is not entitled to any time within which to commence such action against such of them as were within the Province at the time the cause of action accrued by reason only that one or more of them was at such time out of the Province.

Idem

(2) A person having such cause of action is not barred from commencing an action against any joint debtor, joint contractor, joint obligor or joint covenantor who was out of the Province at the time the cause of action accrued, after his return to the Province by reason only that judgment has been already recovered against such of the joint debtors, joint contractors, joint obligors or joint covenantors as were at such time within the Province.

Application of Act

50. This Act applies to all causes of action whether the same arose before or after the coming into force of this Act, except that no action shall be barred merely by its operation until the expiry of six months from its coming into force, but all actions that would have been barred by effluxion of time during such six months under the provisions of the law existing immediately prior to the coming into force of this Act, shall be barred as if such law were still existing.

Rules of equity

51. Nothing in this Act interferes with any rule of equity in refusing relief on the ground of acquiescence, or otherwise, to any person whose right to bring an action is not barred by virtue of this Act.

(NOTE: This Act is not intended to deal with the subject of prescription in case of easements. Therefore, if this Act is adopted in any province in which the existing statute of limitations contains provisions as to prescription in case of easements (see, e.g., R.S.O. 1927, c. 106, ss. 33-38, 42-44), these provisions should be excepted from the repealing clause, and when the provincial statutes are again revised, should be put in a separate Act.)

Schedule

(See section 39)

THE CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS

(For the text of the Convention see 1976 Proceedings, pages 146-1 60)