Yesterday’s Court of Appeal in Giglio v. Peters, 2009 ONCA 681 deals with a curious issue – is a claim for costs against counsel personally in a proceeding covered by the Limitations Act two year limitation period or is the limitation period irrelevant? The Court ruled the limitation period is irrelevant if the motion is part of an action commenced within the limitation period:
[13] Section 4 of
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
[14] Peters “discovered” the basis for the costs order he seeks against Battiston in late 2001 and early 2002 when Giglio and Tenaglia changed their evidence. He did not bring his motion until 2008. Therefore, if his motion is subject to s. 4, it is well beyond the two-year prescription period and would be statute-barred.
[15] The resolution of this issue turns on whether Peters’ motion is a “proceeding … in respect of a claim”. Thus, we must decide whether Peters’ motion is a “proceeding” and if it is, whether it is in respect of a “claim”. For the reasons set out below, I have concluded that Peters’ motion is not a “proceeding”. That conclusion is supported by recent case law from our court, and by the context and legislative purpose of the statute. It is therefore not necessary to decide whether Peters’ motion is in respect of a “claim”.
[16] The word “proceeding” is not defined in the Limitations Act, 2002. Battiston submits that it should be given a very broad meaning, which would encompass Peters’ motion, in order to achieve the overriding purpose of the statute: to prevent stale claims from going forward. Battiston notes that he was not a party to the litigation and ceased to have any role in it after 2002. Yet six years later, Peters seeks a costs order against him.
[17] In support of his submission, Battiston relies on the definition of “proceeding” in Black’s Law Dictionary, and on cases in the Superior Court such as Imoney Corp. v. Quebecor Communications Inc., [2002] O.T.C. 486 (S.C.), aff’d [2002] O.S. No. 4447 (C.A.) defining “proceeding” in other contexts. Black’s Law Dictionary, 9th ed., defines “proceeding” as “an act or step that is part of a larger action”. On its face, this definition is broad enough to include a motion in an action.
[18] In the Imoney case the defendant brought a motion under s. 106 of the Courts of Justice Act, R.S.O. 1990 c. C.43 to stay the plaintiff’s summary judgment motion. Section 106 gives the court discretion to “stay any proceeding”. Although she declined to grant the stay, Hoy J. held that she had jurisdiction to do so. Relying on the definition in Black’s Law Dictionary she held that a motion for summary judgment is a “proceeding” under s. 106.
[19] The meaning of “proceeding” in s. 4 of the Limitations Act, 2002 is a question of statutory interpretation. As with any question of statutory interpretation, context and legislative purpose are paramount considerations. In the well-known and often quoted words of the late Professor John Willis, “words, like people, take their colour from their surroundings” (“Statute Interpretation in a Nutshell” (1938), 16
[20] Here the word “proceeding” appears in a statute that, as Battiston points out, seeks to bar stale claims. However, in the context of a prescriptive statute, the legislation seeks to bar the commencement of stale litigation, not steps within litigation that has been commenced within the statutory time period.
[21] In the light of this context and the statute’s purpose, and in the absence of any definition of “proceeding” in the statute itself, successive panels of this court have turned to the definition of “proceeding” in the Rules of Civil Procedure. Both Feldman J.A. in Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774 (C.A.), and later Simmons J.A. in Placzek v. Green (2009), 245 O.A.C. 220 (C.A.), have held that the word “proceeding” in s. 4 of the Limitations Act, 2002 has the same meaning as “proceeding” in r. 1.03 of the Rules of Civil Procedure.
[22] “Proceeding” under r. 1.03 refers to the commencement of litigation either by action or application; it does not refer to a motion within an action. Thus, under r. 1.03(1):
· “Proceeding” means an action or application;
· “Action” means a proceeding that is not an application and includes a proceeding commenced by statement of claim, notice of action, counterclaim, cross-claim, or third or subsequent party claim; and
· “Application” means a proceeding commenced by notice of application.
[23] Under these definitions, a motion within an action is not a “proceeding”. Indeed, “motion” is defined in r. 1.03(1) to mean “a motion in a proceeding or an intended proceeding”. Peters’ motion under r. 57.07 is an unusual kind of motion because it is brought against a non-party. Yet our rules provide for just such a motion. But it remains a motion, and, moreover, a motion in the existing action between Peters and Giglio and other parties. It is not a “proceeding” under s. 4 of the Limitations Act, 2002.
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