Idle legal Q: Statute of Limitation vs. ownership of the loot

While there may not be a right answer, there are many, many wrong answers.

If you can present a valid legal argument to your “'wrong” answer, you will get at least some credit for it. If you come up with the “right” answer, but use incorrect legal arguments, do not see all the issues, do not use correct logic, etc., it is not right. The important thing in exams is to come up with as many issues as you can and then apply them to the facts. Your conclusion is not as important as the issues you can see.

Well, the classic example of such a law is the Judicature Act, 1873, which merged the English superior courts. Since the courts of equity and courts of law had applied different legal rules, and those courts were to be merged into a single superior court, Parliament had to turn its mind to what rules of law that single superior court would apply. In some cases, the rules of equity would apply, and in others, the specific common law rule would apply. So at least from 1873, the Commonwealth is familiar with statute laws regulating equity.

But I don’t think it’s as rare as you seem to suggest. Think of mortgage law. Mortgage law is a highly specific example of equity and equitable principles (as the name of the key concept, "equity of redemption " suggests), but I don’t think it’s at all uncommon for Parliaments and legislatures to pass statutes dealing with mortgage law.

Two general comments:

First, I think that your references to the concept of in rem actions may be an indication of a difference between the Canadian and US legal systems. In my experience, we don’t use the concept of in rem actions very much; when I hear the phrase, I immediately think “admiralty law”, because that’s the only area of law where I remember seeing the concept being relied upon in Canadian court cases. I can’t think of any cases from our Supreme Court like the famous SCOTUS cases against pessaries or canisters of film. So, I’m not convinced that Canadian courts would consider an action to recover a piece of property from another person to be an in rem action; I would expect it to be categorised as an action by one person against another, seeking an order that the defendant return the property, and in which the title to the property would become one of the legal issues.

Second, with respect to the Ontario Limitations Act, I respectfully think you’re reading too much into the reference to an action against a person in s. 13. That provision is a very specific one, dealing with the effect of an acknowledgment of a claim, which only a person can give, not an inanimate object. I don’t think that specific provision governs the scope of the Act. Rather, that is provided for by s. 2, which reads:

So, the general principle is that the Act applies to all claims brought in court proceedings. Those are very general terms, and do not refer to any specific form of action or petition, nor to the nature of the parties. I would not see any exemption there for equitable claims in general, nor a restriction of the Act to personal actions.

The definition of “claim” also supports this interpretation, in my opinion, by its reference to a claim to remedy a “loss” - that seems to me to be general enough wording to include the loss of a specific piece of property, which the plaintiff is claiming from another.

This interpretation of the Act as being very general is also supported by the various exemptions and exceptions given in the Act, for example in s. 2 itself, but also later in s. 16. For example, s. 2(1)(f) exempts equitable claims brought by aboriginal peoples against the Crown. If there is a specific exemption for this type of equitable claim, that is a strong indication that the Act generally does apply to equitable claims; otherwise there would not be any need for the exemption in s. 2(1)(f).

Similarly, s. 16 gives a list of claims for which there is never a limitation period. That approach is consistent with the current approach to limitations in Canada, which is to have a general limitation period, with exemptions and exceptions, rather than the older approach of piecemeal limitation periods for particular types of actions and proceedings. The newer approach is to include everything in the general limitation period, unless there is a specific exemption or exception.

So, I don’t think the question is “Is there language in the act which specifically brings in actions in rem?” Rather, the question is: “Is there language in the Act which specifically exempts actions in rem?” And, personally I don’t think there is anything which excludes actions in re.