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LIMITATION OF ACTIONS - Extension, interruption, suspension and inapplicability - Acknowledgment or part payment

Tuesday, October 10, 2017 @ 8:41 AM  

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Appeal by the defendant, White, from a summary trial judgment on a promissory note granted in favour of the plaintiff, Richmond. A demand promissory note dated December 2001 was granted by the defendant and her husband in favour of the plaintiff. Interest payments on the note were made via post-dated cheques. The defendant deposed that her only involvement with the loan was the delivery of the cheques during social visits to the plaintiff. In December 2014, the plaintiff demanded payment of the loan. She commenced litigation in January 2015. The defendant advanced a limitation defence. The trial judge ruled the defendant confirmed the cause of action and acknowledged the debt in an email mentioning regular discussion of the debt between the parties, and by the interest payments. The limitation defence was rejected and judgment was granted in favour of the plaintiff. The defendant appealed.

HELD: Appeal allowed. The evidence did not support the trial judge's conclusion that the defendant confirmed the cause of action prior to expiration of the limitation period. The email mentioned by the trial judge did not mention the defendant's participation in discussions regarding the debt. In any event, the mention of discussions in an email did not constitute effective written acknowledgment of a cause of action. The only interest payment cheques in evidence were dated 2015, well after the expiration of the six-year limitation period in 2007. Any interest payments were made by the defendant's husband rather than the defendant herself. The judgment was set aside.

Richmond v. White, [2017] B.C.J. No. 1932, British Columbia Court of Appeal, D.F. Tysoe, G. Dickson and G.J. Fitch JJ.A., September 19, 2017. Digest No. TLD-October92017001