Oppression Remedy subject to two year limitation period

There is some dispute as to whether there is a limitation period for claims under the oppression remedy under the OBCA. This confusion arises as a result of cases decided under the old Limitations Act (Ontario). Under a careful reading of the current Limitations Act (2002) there can be no doubt that a two year limitation period applies to oppression remedy claims.

Every claim discovered after January 1, 2004 is governed by the Limitations Act (2002): s. 24. Unlike the former Act, under the Limitations Act (2002) there is a generally applicable limitation period of two years subject only to exceptions. Section 4 provides:

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.

Sections excluding actions from the application of the general limitation period deal with real estate, aboriginal rights, sexual assault, governmental claims and some procedural matters: ss. 2, 10, 16, 17. None of the exclusion sections contain any reference to the OBCA or to fiduciary breaches.

There is a caselaw in Ontario that holds an oppression claim to be a claim sounding as a breach of fiduciary duty. Based on that finding lower level courts have held that no limitation applies under the former Limitations Act for oppression claims: Cutajar v. Frasca 2009 CarswellOnt 7476, para 69; Paragon v Sonka 2009 CarswellOnt 1654, para 163. Other Ontario cases have held that the limitation for an "action on the case" applies although this conclusion was doubted by the Court of Appeal: Ford v. O(MERB), [2006] O.J. No. 27 (Ont C.A.) para 169 - 174. Regardless, since the current Act covers all claims and does not exclude oppression or fiduciary breach, the old caselaw is inapplicable.

In this regard, the decision of Chief Justice Monnin of the Manitoba Queen's Bench in Inc. v Canwest [2009] 5 W.W.R. 522 at para 115 is helpful. There the Chief Justice holds it would be "contrary to policy reasons" for no limitation period to apply to oppression claims. More generally see the decisions following for an application of a limitation period to an oppression remedy claim: Hughes v Tallman 2005 MBCA 16; Seidel v. Kerr 2003 ABCA 267; Inc. v. Canwest, supra.