In Harvey v. Talon International Inc., 2017 ONCA 267, the Court of Appeal was faced with the interpretation of theReal Property Limitations Act in order to determine whether that Act governed claims for the refund of deposits towards property. The plaintiffs entered into agreements of purchase and sale for residential units from the defendant. The plaintiffs subsequently requested to terminate their earlier agreements as a result of material changes and commenced an application for the return of their deposits. One of the plaintiff’s, Ms. Yim, sought to amend her notice of application to claim statutory rescission more than two years after the date on which such a claim was discovered. The defendant argued that her amendment was statute-barred pursuant to s. 4 of theLimitations Act, 2002. The Court disagreed and concluded that the 10-year limitation period in s. 4 of the RPLAgoverned claims for the refund of deposits advanced toward the purchase of condominium units and therefore, the plaintiff’s claim was not out of time.
Section 4 of the RPLA in relevant part reads as follows:
No person shall … bring an action to recover any land … but within ten years … after the time at which the right … to bring such action, first accrued to the person making or bringing it.
The Court held that there are 3 requirements: (i) an “action”, (ii) to “recover” and (iii) what must be recovered is “land.”
An “action” is defined in s. 1 of the RPLA to include “any civil proceeding”.
The Court referred to its earlier decision in McConnell v. Huxtable, 2014 ONCA 86, where it held that “to recover any land” is not limited to obtaining possession of the land, nor does it mean to regain something that the plaintiff had and lost. Rather, “recover” means to “obtain any land by judgment of the Court.” Therefore, the Court held that this was clearly an action to recover.
The remaining question was whether what the plaintiff sought to recover – her deposit – is “land.” The definition of land in s. 1 of the RPLA is as follows:
“land” includes massuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency;
The Court concluded that an application for the return of the deposit was an action for the recovery of “land”; specifically, the recovery of “money to be laid out in the purchase of land.” In Justice Epstein’s view, “I struggle to understand what would fit within this phrase if not an action such as this.”
