In Conde v Ripley, 2015 ONSC 3342, the plaintiff sought to set aside a conveyance pursuant to section 2 of the Fraudulent Conveyances Act (FCA). An action may be commenced under that section against a transferee of real property or personal property to declare a conveyance of such property to be void as against “creditors or others” in the circumstances where fraudulent intent is to be found. The question before the court was which limitation period was applicable to a claim under section 2 of the FCA: the two year limitation period set out in the Limitations Act, 2002, or the ten year limitation period set out in the Real Property Limitations Act (RLPA). The answer hinged on the determination of the nature of the claim. The two possibilities were either (i) nature of the underlying claim of the “creditors or others” bringing the action; or (ii) whether the conveyance involved real property, personal property, or both?
The Court concluded that the nature of the claim by which the “creditors and others” obtain standing to bring a claim under the FCA has no bearing upon whether the claim to set aside the conveyance itself is one governed by the RLPA or the Limitations Act. Rather, if a claim is brought under the FCA to set aside a conveyance of real property, such claim is on its face a claim to “recover any land” to which the RLPAapplies. In its analysis, the Court reasoned that “[i]t would be inconsistent in the extreme if a two year limitation period were to be applied to an FCA action seeking to invalidate a subsequent transfer of an interest in land, while the claim to the land itself is subject to a ten year limitation period.”
