Canada: Suspension Denied: ONCA Confirms That Automatic Stay Pending Appeal Does Not Suspend The Limitation Period

Last Updated: October 23 2013
Article by Katherine A. Booth

Most Read Contributor in Canada, September 2018

The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 ("msi Spergel") confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the "Limitations Act") unless there is express statutory authority to do so.


In July 2006, Propco obtained a default judgment against the bankrupt, Dilollo, for over $22 million. In December 2006, Propco commenced a bankruptcy application against Dilollo. By the end of 2007, Dilollo had paid approximately $1.1365 million to Propco, which Propco accepted in satisfaction of the settlement in exchange for dismissal of its bankruptcy application. As matters transpired, the bankruptcy application was never formally dismissed and three additional creditors were later added as applicants. A bankruptcy order was made on January 11, 2010. Dilollo appealed on January 20, 2010 and the appeal was dismissed on September 27, 2010. On August 27, 2012, approximately 30 months after the bankruptcy order, msi Spergel (the "Trustee") brought a motion to set aside the payment to Propco as a preferential payment contrary to s. 95 of the Bankruptcy and Insolvency Act (the "BIA").

The issue before the Court in msi Spergel was whether s. 195 of the BIA, which provides that "all proceedings under an order or judgment appealed from shall be stayed until the appeal is disposed of", was an "extension, suspension or other variation" of the two-year limitation period within the meaning of s. 20 of the Limitations Act. Section 20 provides that the two-year limitation period in that act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act." If the limitation period was suspended while the proceeding was stayed on appeal, then the Trustee's preference motion would have been commenced within the two-year limitation period.

No Implied Suspension From Automatic Stay

The Ontario Court of Appeal, per Strathy J.A., found that the automatic stay under s. 195 of the BIA was not a "suspension" of the general two-year limitation period. Unless a suspension, extension or other variation of the limitation period is expressly authorized by statute, the Court will not imply any suspension from an automatic stay pending appeal. As a result, the preference motion was statute-barred and the payment to Propco was upheld.

In reaching this decision, the Court disagreed with the motion judge's analysis that, if the statute contains no limitation period itself, then s. 20 of the Limitations Act cannot apply. Strathy J.A. confirmed that a provision of the BIA or any other statute is capable of suspending the operation of the general limitation period even if the statute does not contain a limitation period itself, although it did not in this case.

The Court also distinguished from the line of case law under the sub-provisions of s. 69 of the BIA, which stipulate that on the happening of particular acts initiating the bankruptcy process "no creditor has any remedy against the debtor or the debtor's property". These provisions have been held to toll the running of the limitation period during the bankruptcy. The Court noted that s. 69 was not a provision that "extends, suspends or varies" a limitation period. Rather, s. 69 takes away creditors' civil remedies altogether and requires them to submit their claims through the bankruptcy process. In the rare case where the bankrupt is not discharged or the claim survives bankruptcy, a creditor's civil remedies are returned after the bankruptcy and the limitation period may resume running. Section 195, on the other hand, has no effect on the remedies available to the creditor. Its purpose is to ensure that no steps are taken in the bankruptcy that cannot be unwound if the appeal succeeds. The jurisprudence under s. 69 of the BIA does not apply.

Finally, the Court rejected the Trustee's argument that creditors will be prejudiced if the limitation period is not suspended pending appeal. Even though an automatic stay may prevent the trustee from taking various steps necessary to investigate a possible preference claim (ex: hold a first shareholder's meeting), it is open to the trustee under s. 195 to apply to lift the stay if it interferes with the trustee's ability to initiate the preference motion.


msi Spergel serves as a cautionary tale to trustees and creditors who think they may have a preference claim: if a stay pending appeal prevents the trustee from investigating the potential claim, the onus is on the trustee to apply the lift the stay.

More generally, msi Spergel confirms that the Court will take a strict approach to interpretation of any statutory provisions that arguably implicitly suspend, extend or vary the limitation period. The purpose of the Limitations Act of is to promote certainty and clarity in the law of limitation periods. Absent express statutory authority, the Court will not imply a suspension, extension or variation of the general limitation period.

Case Information

msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550

Court File No. C56626

Decision Date: October 2, 2013

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions