Ginn v Feng, 2021 ABQB 292

Court of Queen’s Bench of Alberta Citation: Ginn v Feng, 2021 ABQB 292 Date: 20210415 Docket: 1501 03473, B201 075556 Registry: Calgary Docket: 1501 03473 Between: Herbert Ginn and Elsie Ginn Plaintiffs (Appellants) - and - Jianweng Feng and Qilian Feng Defendants (Respondents) Docket: B201 075556 AND IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, RSC 1985, c B-3 , AS AMENDED AND IN THE MATTER OF THE BANKRUPTCY OF JIANWEN FENG _______________________________________________________ Decision of the

Honourable Justice April Grosse _______________________________________________________ INTRODUCTION [ 1 ] Mr. and Mrs. Ginn are trying to enforce a judgment they obtained against Ms. Feng in 2009. The Ginns filed an action in 2015, attacking a house transfer from Ms. Feng to her father as a fraudulent conveyance or preference. In the meantime, Ms. Feng declared bankruptcy and was discharged. There has never been a suit on the 2009 judgment and it has never been renewed. This appeal from two decisions of the Master/Registrar [1] turns on the following related issues: (

a) Did the Ginns’ application for a declaration that their 2009 judgment survived the bankruptcy stop the limitation period for suing on or renewing that judgment pursuant to

section 11 of the Limitations Act or Rule 9.21 of the Rules of Court ? In particular, was the application a claim for a “remedial order”? (

b) Are the Fengs entitled to immunity in the fraudulent conveyance and preference action based on the passage of the 2-year limitation period pursuant to

section 3 of the Limitations Act ? In particular, is the fraudulent conveyance and preference action a claim for a “remedial order”? FACTUAL AND PROCEDURAL CONTEXT [ 2 ] The following facts and procedural history are uncontested for the purposes of the appeal. [ 3 ] Between 2004 and 2007, Mr. and Mrs. Ginn rented a house to Ms. Feng. They claim that she used the house as part of a marijuana grow operation. In 2007, the Ginns commenced an action against Ms.

Feng for damages arising out of the tenancy (the “2007 action”), and on February 24, 2009, they obtained default judgment for $68,259.11 plus interest and costs (the “2009 judgment”). Between the filing of the Statement of Claim and the date of judgment, Ms. Feng transferred title to a house she owned to her father, Mr. Feng. [ 4 ] Ms. Feng did not satisfy the Ginn’s 2009 judgment.

On August 28, 2009, they filed an application in the 2007 action seeking relief under the Fraudulent Preferences Act , RSA 2000, c F-24 (the “ FPA ”) and the Statute of Fraudulent Conveyances , 1571 (UK), 13 Eliz c5, 1571 (the “ Statute of Elizabeth ” or the “SE”) in respect of the transfer of the house to Ms. Feng’s father. That application was never heard. In 2015, the Ginns commenced a fresh action (this action, or the “2015 action”) against both Ms. Feng and her father Mr. Feng, seeking to have the transfer of the home declared void under the FPA or the SE. Ms. Feng and Mr.

Feng filed a Statement of Defence. [ 5 ] In January, 2016, Ms. Feng filed an assignment into bankruptcy. The Ginns were listed as creditors, but their address was incorrect and they did not receive notice of the bankruptcy. Ms. Feng obtained an automatic discharge in October 2016. [ 6 ] The Ginns did not become aware of the Feng bankruptcy until in or about March, 2017. In February, 2018, Ms. Feng and Mr. Feng filed an application for

summary judgment in the 2015 action, relying on, among other things, the discharge in bankruptcy and the Limitations Act , RSA 2000, c L-12 . Prior to the hearing of Ms. Feng’s application, the Ginns brought an application in both the 2015 action and Ms. Ginn’s bankruptcy action seeking a declaration that the 2009 judgment survived the discharge in bankruptcy. That application is made pursuant to

section 178 of the Bankruptcy and Insolvency Act , RSC 1985, c B-3 (the “ BIA ”) and is referred to by the parties as the “Bankruptcy Application”. [ 7 ] The

summary judgment application and the Bankruptcy Application were heard together before the Master/Registrar. The Master/Registrar dismissed the Bankruptcy Application, holding that since the 2009 judgment was not renewed, a declaration that it survived the bankruptcy, even if available, was of no use. He granted

summary judgment in the 2015 Action on the basis that it had been commenced outside the 2-year limitation period under the Limitations Act . The Ginns appeal both decisions. ANALYSIS Standard of Review [ 8 ] The parties generally agree that the standard of review on the

summary judgment appeal is correctness. The Ginns, as appellants, put more emphasis on the cases that refer to “no deference” or “de novo”. The Fengs, as respondents, prefer the term “correctness”. In Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 the Court of Appeal declined to distinguish between the three

terms and used “correctness”: Bahcheli at para 3 . The Court went on to confirm that the “correctness” standard, which applies to all issues, involves “no deference”: Bahcheli at para 19 . Bahcheli remains good law: Singh v Noce , 2019 ABCA 55 at para 8 . [ 9 ] The parties also agree that the standard of review is different where a Master makes a decision sitting as Registrar in Bankruptcy.

They cite Morrison (Re) , 2019 ABQB 757 at para 24 , which refers to Re Sally Creek Environs Corp , 2010 ONCA 312 . [ 10 ] Where the parties differ is on whether the learned Master was sitting qua Master or qua Registrar when he decided the Bankruptcy Application. The Ginns argue that the jurisdiction to determine whether a debt is released under

section 178 lies with the civil court, and therefore, with the Master qua Master. They rely on Amex Bank of Canada v Johnson , 2007 ABPC 130 . The Fengs argue that whatever jurisdiction the civil courts may have, the Registrar hears applications under

section 178 and did so in this case. They note that paragraph 13 of the Application says that it will be heard “Before the presiding Registrar in Chambers”. The Master/Registrar did not make any express statement on the point. [ 11 ] In this particular case, the outcome is the same regardless of the standard of review. I have assumed, without deciding, that a correctness standard applies in the appeal from the Bankruptcy Application. Appeal on the Bankruptcy Application [ 12 ] A discharge from bankruptcy generally releases a bankrupt, here Ms. Feng, from all claims provable in bankruptcy: BIA , s 178(2).

However, section 178(1) sets out a list of exceptions. In the Bankruptcy Application, the Ginns rely on section 178(1) (

e) of the BIA : “any debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation, other than a debt or liability that arises from an equity claim.” The Ginns argue that the 2009 judgment resulted from Ms. Feng obtaining the lease by false pretences or fraudulent misrepresentations in not disclosing that she was going to use the home for a marijuana grow operation. [ 13 ] The learned Master/Registrar noted that he would “normally accede” to the Ginns’ position on the facts.

He stated: “That’s a pretty fundamental thing with respect to a landlord/tenant application of whether marijuana is going to be grown in the property or not and failure to disclose that would normally rise to the level, potentially of a surviving claim.” However, the Master/Registrar dismissed the Bankruptcy Application because by the time the matter was heard, more than 10 years had passed since the 2009 judgment was granted. [ 14 ] There is no provision in statute or in the Alberta Rules of Court, AR 124/2010 setting an expiry date for money judgments. Rather,

section 11 of the Limitations Act grants the defendant immunity from liability if the judgment creditor does not seek a “remedial order” within 10 years. Traditionally, this was a fresh action on the judgment. Later, rules of court provided for another procedural mechanism in the nature of what is often referred to as an application to renew (even though the rule does not actually use the word “renew”). In our current Rules of Court , Rule 9.21 permits an application for a new judgment or order on a former judgment without commencing a fresh action.

Notice of the application must be filed “before the expiry of the limitation period under the Limitations Act for an action on the judgment [...]”: Rule 9.21(3)(a). [ 15 ] The Ginns have never sued on the 2009 judgment or filed an application pursuant to Rule 9.21. Accordingly, the Master held that even if the facts would otherwise fit within section 178(1) (

e) of the BIA , the 2009 judgment was no longer capable of being pursued by virtue of

section 11 of the Limitations Act . In effect, the Bankruptcy Application was moot. [ 16 ] There was some discussion in front of the Master as to whether the

section 11 limitation period was properly raised in the Bankruptcy Application.

Section 11 grants a defendant immunity from liability in respect of a claim based on a judgment or order for the payment of money, upon pleading the Limitations Act as a defence. The Ginns pointed out that there was no suit on the 2009 judgment or application pursuant to Rule 9.21 before the court and accordingly, no plea of

section 11 . In effect, they suggested that the Bankruptcy Application should be decided on its merits and if

section 11 were to be raised, that should happen if and when they too some further step such as applying under Rule 9.21. The Master did not comment on this particular procedural point in his decision. On appeal, the Ginns did not raise this issue. Rather, they framed the appeal around the merits of the

section 11 argument on these facts, and in particular, whether the relief sought in the Bankruptcy Application was a “remedial order”, as defined in the Limitations Act

section 1 (i): “remedial order” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right….”. I have dealt with the appeal on that basis. The Bankruptcy Application as a Remedial Order [ 17 ] The Ginns argue that when they filed the Bankruptcy Application on November 27, 2018, they sought a “remedial order” in respect of the 2009 judgment for the purposes of

section 11 of the Limitations Act . Accordingly, their position is that the limitation period for action on the 2009 judgment has not expired and if they are successful in obtaining an order that the 2009 judgment survived Ms. Feng’s bankruptcy, it is open to them to sue on the 2009 judgment or apply under Rule 9.21 to have it renewed.

The Ginns argue that they had to make the Bankruptcy Application first before applying under Rule 9.21 because until they have an order that the 2009 judgment survived the bankruptcy, there is, in effect, no valid judgment to renew. [ 18 ] On the face of the Application, the only relief requested in the Bankruptcy Application (other than costs) is a declaration that the 2009 judgment be recognized as not released in the bankruptcy. A declaration of rights and duties, legal relations or personal status is excluded from the definition of “remedial order”: Limitations Act , s 1(i)(i).

However, the Ginns argue that the Bankruptcy Application requires Ms. Feng to comply with duties not to rent a property based on misrepresentations or false pretences, to disclose her bankruptcy filing to the Ginns as creditors and to disclose to her trustee in bankruptcy that the 2009 judgment resulted from obtaining property or services on false pretences or fraudulent misrepresentation, and as such, amounts to a “remedial order” because it would require Ms. Feng to comply with a duty.

[ 19 ] It is not uncommon for issues to arise as to whether certain relief is declaratory within the exclusion to the definition of “remedial order” in the Limitations Act . The issue arises twice in this case, with each party taking a turn arguing each side. The way it arises in the Bankruptcy Application, with the claimant arguing that its claim is not declaratory, is unusual. [ 20 ] The leading authority on determining whether relief is declaratory or remedial for the purpose of

section 1 (

i) of the Limitations Act is Yellowbird v Samson Cree Nation No 444 , 2006 ABQB 434 , aff’d 2008 ABCA 270 . I am to have reference to the words of the statute, which deem relief to be remedial if it requires the defendant “to comply with a duty or pay damages for violating a right”. I am also to ask whether, if the Court granted the declaration sought, and the defendant resisted implementation, the plaintiff could “leave the court in peace” and enjoy the benefits of the declaration without further resort to the judicial process. The exception in

section 1 (

i) of the Limitations Act for declaratory relief should be narrowly construed: Joarcam, LLC v Plains Midstream Canada ULC , 2013 ABCA 118 at para 7 . [ 21 ] I need not determine whether an application for relief under

section 178 of the BIA would always, or never, be a “remedial order” for the purposes of the Limitations Act . In this particular case, while the Bankruptcy Application may be “remedial” in the larger sense of the word, I am convinced that the Bankruptcy Application is not remedial as that term is used in

section 1 (

i) of the Limitations Act . The Bankruptcy Application is truly a request for a declaration of rights and legal relations. It asks the court to declare the legal status of the 2009 judgment in light of Ms. Feng’s bankruptcy. Armed with that declaration, the Ginns could carry on with execution of the 2009 judgment in peace. No action is required by Ms. Feng, the Ginns or the Court to give effect to that particular declaration. There is no practical way that Ms. Feng could fail to comply. [ 22 ] Moreover, I am not convinced that the relief sought in the Bankruptcy Application, whether classified as remedial or declaratory, is relief that falls within the wording of

section 11 of the Limitations Act . Unlike prior limitations legislation, the Limitations Act adopts general limitations periods that apply to all types of claims.

Section 11 is one of the few exceptions, where there is a specific limitation period for a specific type of claim. It addresses claims “based on a judgment or order for the payment of money.” The judgment creditor must seek a “remedial order” in respect of that claim within 10 years. [ 23 ] In that context, the duty with which the “remedial order” would require compliance is the duty to pay the original money judgment. The Bankruptcy Application is no doubt made in furtherance of that objective. However, it does not, and could not, request payment on the original judgment, nor a new judgment or renewed judgment.

Even if the Bankruptcy Application sought a “remedial order”, it does not do so “in respect of a claim based on a judgment or order for the payment of money”. [ 24 ] In my view, this

interpretation is not only true to the wording and intent of

section 11, but to the integrity of the Limitations Act as a whole. If the Ginns’ argument were accepted, there is a risk that the period for suing on or renewing the 2009 judgment would be extended indefinitely. In the ordinary course, a fresh or renewed judgment would be subject to a new 10-year period under

section 11 . However, since the Bankruptcy Application itself would not result in a “judgment or order for the payment of money”, there would be no new 10-year period under

section 11 . Perhaps there would be some other argument available to Ms. Feng, and I do not want to pre- judge that issue for some other case. For present purposes, this troublesome potential result is simply another factor weighing against treating the Bankruptcy Application as requesting a “remedial order” as contemplated by

section 11 . [ 25 ] It is noteworthy that Rule 9.21(3)(

a) specifically refers to filing the application before the “expiry of the limitation period under the Limitations Act for an action on the judgment.” While the Rule does not change the scope or meaning of

section 11 of the legislation, it confirms that the drafters of the Rules contemplated that the “remedial order” referenced in

section 11 of the Limitations Act would generally be an action on the judgment, not some other relief. [ 26 ] I acknowledge that in many ways, this result seems both arbitrary and harsh. The Ginns, through no fault of their own, did not receive notice of Ms. Feng’s bankruptcy until after she had been discharged. Ms. Feng then sought to rely on her discharge in her

summary judgment application in the context of the 2015 action. By that time, the Ginns were nearing the end of the limitation period under

section 11 of the Limitations Act . They presumably had to make both the Bankruptcy Application and take some action on the 2009 judgment in order to continue trying to enforce it. It may well be that regardless of which they did first, Ms. Feng would have pointed to the other as not yet being satisfied. When they filed the Bankruptcy Application, the 10-year period under

section 11 of the Limitations Act had not yet passed. It is hard to accept that the choice to make the Bankruptcy Application first, coupled with some delays in having it heard, was fatal. Most procedural choices in litigation do not have such harsh consequences. However, limitation periods have harsh consequences, and they are inherently arbitrary; yet, as a matter of policy, the legislature has found them to be necessary. [ 27 ] Further, there is no apparent reason why the Ginns could not have sued on the 2009 judgment or applied under Rule 9.21 before February 24, 2019.

I appreciate that the discharge from bankruptcy had to be addressed. However, I do not see how the discharge prevented them from at least filing a claim or renewal application concurrently with the application under

section 178 of the BIA . Exactly how the matters would have proceeded, or in what order, I do not know. However,

section 11 of the Limitations Act would not have been an issue. Alberta Securities Commission v Hennig , 2020 ABQB 48 provides at least one example of both issues being addressed together. Extension of time for an Application Pursuant to Rule 9.21 [ 28 ] The Ginns have never made a renewal application pursuant to Rule 9.21. I asked counsel in argument whether Rules 13.5 or some other curative provision could be available in an eventual application under Rule 9.21 to retroactively extend the time for applying. The Ginns’ counsel candidly acknowledged he had not considered it but was not relying on those rules.

I have considered their potential application out of an abundance of caution. [ 29 ] Rule 13.5 permits the Court to extend a time period specified in the rules unless a rule otherwise provides. It is clear that Rule 13.5 could not extend the limitation period under

section 11 of the Limitations Act itself. However, could the reference to

section 11 in

Rule 9.21 be seen as a time limit “specified in these rules”, albeit by reference to the statute, thereby fitting within the scope of Rule 13.5? If so, even the potential for the 2009 judgment to be retroactively renewed in the future could undermine the Master’s conclusion that the Bankruptcy Application must be dismissed at this stage, regardless of its merits on the facts. [ 30 ] The predecessor to Rule 9.21, Rule 331, included a specific sub-provision 331(2) precluding the application of the rule on extension of time (which was then Rule 548, now Rule 13.5): Alberta Rules of Court , AR 390/1968 , R 331(2).

Rule 331(2) was not carried forward into Rule 9.21 when the Rules were amended in 2010. I have not found any commentary as to why not. In spite of this unexplained change, I have concluded that an extension of time under Rule 13.5 would not be available to the Ginns under Rule 9.21. [ 31 ] Rule 9.21 is simply a procedural alternative to commencing an action on a judgment. Rule 9.21, in effect, incorporates the limitation period in

section 11 of the Limitations Ac t by reference. It may be a time limit “specified in these rules”, but it is created elsewhere, and the underlying source is not variable by Court application. There is nothing in Rule 9.21 to suggest that the drafters intended there to be one limitation period applicable to an action on the judgment, and a different one (or no limitation) applicable to an application to renew under Rule 9.21. Quite the contrary. The Rule ties the two together.

Rule 331(2) could well have been dropped as superfluous. [2] Conclusion on the Bankruptcy Application Appeal [ 32 ] For the foregoing reasons, even if the liability created by the 2009 judgment survived Ms. Feng’s bankruptcy, and even if it so survived as at the date the Bankruptcy Application was filed, she has since acquired immunity from that liability pursuant to

section 11 of the Limitations Act . A declaration pursuant to

section 178 of the BIA is of no assistance to the Ginns. The Master/Registrar was correct to dismiss the Bankruptcy Application on this basis. The appeal from that decision is dismissed. [ 33 ] In light of this conclusion, I have not considered whether the Master’s/Registrar’s reference to “normally acceding” to the Ginns’ position on the merits amounted to a finding on the merits or whether any such finding was correct.

Summary Judgment Appeal [ 34 ] Ms. Feng’s immunity in respect of the 2009 judgment raises a legitimate question as to whether the 2015 Action can bring any practical benefit to the Ginns even if successful. However, the Master decided the

summary judgment application in the 2015 Action on independent grounds and both parties asked that I decide the appeal from the

summary judgment decision regardless of the decision on the Bankruptcy Application. The Fengs pointed out that Mr. Feng is an applicant for

summary judgment, but is not party to the Bankruptcy Application or to the 2007 action or 2009 judgment. Test for

Summary Judgment [ 35 ] The parties agree that the Fengs’

summary judgment application under Rule 7.3 is governed by the principles set out in Weir- Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 and Hryniak v Mauldin , 2014 SCC 7 . Those principles are now well-known and I need not recite them. The Limitations Issue [ 36 ] The 2015 action alleges that Ms. Feng transferred a house to her father on or about February 25, 2008, between service of the Statement of Claim in the 2007 action and the 2009 judgment. The 2015 action alleges that the transfer was a fraudulent conveyance or a fraudulent preference.

The record is clear that the Ginns had knowledge of the alleged transfer between Ms. Feng and Mr. Feng, and the related material circumstances, and believed that it warranted bringing a proceeding by at least August 28, 2009, when they filed their notice of motion for fraudulent conveyance and fraudulent preference relief in the 2007 action. If the 2015 action amounts to seeking a “remedial order”, then the limitation period under section 3(1) (

a) of the Limitations Act had expired before the action was commenced and the Fengs would be entitled to immunity. There would be no merit to the 2015 action requiring a trial. [ 37 ] In this context, it is the Ginns relying on the declaration exclusion in

section 1 (i)(

i) of the Limitations Act . They also point to the exclusion in

section 1 (i)(ii) for “the enforcement of a remedial order”. The Ginns argue that the Master erred in finding that the 2015 action seeks a “remedial order” as that term is defined in

section 1 (

i) of the Limitations Act . [ 38 ] The main authority relied on before the Master for the proposition that the Limitations Act does not apply to relief sought under the SE or FPA was Milavsky v Milavsky , 2011 ABCA 231 , wherein the Court stated (at paras 33 & 35): [...] It is questionable, however, whether an action based upon the Statute of Elizabeth involves a “claim based on a breach of duty”[...] [...] it is at least arguable that the statutory right conferred by the Statute of Elizabeth involves no breach of duty, making Bowes [ v Edmonton (City) , 2007 ABCA 347 - a case dismissed based on a limitation period] distinguishable”.

[39] The learned Master did not accept the Ginns’ reading of Milavsky. He held that the Limitations Act applies to fraudulentconveyance and fraudulent preferences claims. He had never heard a suggestion otherwise. Looking at the Statement of Claim in the2015 action, he noted that the prayer for relief went beyond a declaration that the transfer of the home was void. [40] The prayer for relief consists of the following: (

c) a declaration that the Transfer of the Property from the Defendant, Jianweng, to the Defendant, Qi Lan, is void; (

d) a declaration that the Defendant, Jianweng, holds title to the Property; (

e) the filing and registration of a Certificate of Lis Pendens on the Property…held by the Defendants to prevent its transfer,appropriation or sale pending the determination and Trial of this Action; (

f) an Order directing that the Property be sold pursuant to the Civil Enforcement Act, and the proceeds applied to thesatisfaction of the Judgment owed to the Plaintiff by the Defendant, Jianweng; (

g) costs of this Action; and (

h) such further and other relief as this Honourable Court may deem just and appropriate having regard to all the circumstances. State of the Law [41] The law in terms of the application of the Limitations Act to fraudulent preferences and conveyances actions may not be asclear as it appeared to the Master, based on the limited authority in front of him.

Along with Milavsky, there are other judicial statementssuggesting that fraudulent conveyance and preference claims are declaratory in nature: for example, see Perry, Farley & Onyschuk vOuterbridge Management Ltd (2001), (ON CA), 146 OAC 144 at para 30 and Ontario v Wills, [2008] OJ No 4672at para 6 (SCJ). At least one commentator has treated the applicability of the Limitations Act in Alberta as an open question: for example,see M.A. Springman, Frauds on Creditors: Fraudulent Conveyances and Preferences, loose-leaf (Carswell) at

section 5(e)(iii)(B); seealso Alberta Law Reform Institute, Reviewable Transactions, Final Report 108 (Updated April 2016) at para 87, footnote 62acknowledging the argument. Parties in other cases have argued that fraudulent preferences and conveyances actions are not subject to alimitation period: for example, see the brief filed by the Receiver in Action 1501-11817:https://www.bdo.ca/BDO/media/Extranets/base/Bench-Brief-of-the-Receiver-March-20-2019.pdf. [3] [42] On the other hand, other authors opine that usual limitation periods apply. For example, see: D. Dunlop and T.M.

Buckwold,Debt Recovery in Alberta (Thomson Reuters Canada Ltd, 2012) at 1081 and Alberta Law Reform Institute, Reviewable TransactionsFinal Report 108 (2016) at para 87. [43] It does not appear that the issue has been addressed directly by an Alberta court. [44] There will be occasions where “the law is so unsettled or complex that it is not possible to apply the law to the facts withoutthe benefit of a full trial record”: Weir-Jones at para 45. This is not such an occasion. The facts relevant to the limitations issue areuncontested.

A full trial record is not going to change the state of the law nor the way it applies to the facts of this particular case. I amsatisfied that it is possible to fairly resolve this dispute on a

summary basis. Remedial Order or Declaration: Application of Yellowbird to the 2015 Action [45] Applying the test from Yellowbird, whether the 2015 Action falls within

section 1(i)(

i) of the Limitations Act as a declarationof rights and duties, legal relations or personal status, to which the periods in

section 3 do not apply, depends on what may flow directlyfrom a declaration under the legislation that a transaction is void. If that declaration would give the Ginns the outcome they seek, whichis the ability to enforce the 2009 judgment against the land in question, then arguably, they could enjoy the benefits of the declarationwithout further resort to the judicial process. If not, then what they are really seeking is an order remedial in nature. [46] While not unanimous, the weight of authority is that “void” in the Fraudulent Preferences Act and the Statute of Elizabethactually means “voidable”: for example, see Springman at

section 6(a.1) (ii) and Guthrie v Abakhan & Associates Inc, 2017 BCCA 102at para 19.[4] In other words, a successful challenge under the legislation does not render the transaction void ab initio. This suggests thatthe property does not automatically revert to the judgment debtor, in this case Ms. Feng. Such an order may be available, but it would beancillary and not automatically part of the declaration made under the legislation. The Court in Yellowbird was clear that “[a]ncillaryremedial relief is still remedial”: Yellowbird (QB) at para 29. [47] Unwinding the transaction may not be necessary.

It is generally acknowledged that inherent in the declaration of “void”pursuant to the FPA or the SE is a recognition that the transferred property, or at least its value, is available to creditors even without are-transfer. In this case, this would mean that the house is exigible even if title remains with Mr. Feng. Even so, I have not been providedwith any authority suggesting that without more, the Ginns could then enforce the 2009 judgment against the home without “furtherlegal execution or intervention”: Yellowbird (QB) at para 35.

The Civil Enforcement Act contemplates seizure of personal property in thehands of a third party:

section 44. It does not include a similar provision for land, referring only to “land of the enforcement debtor”: CivilEnforcement Act,

section 67. Rule 9.24 of the Rules of Court permits the Court to order the sale of property or part of property in thecontext of a claim under the FPA or the SE. Presumably, the Rule applies even if title remains in the hands of the transferee.[5]However, an application is required under the Rule, which is clearly further legal execution or intervention. [48] I make no decision as to whether a claim under the Fraudulent Preferences Act or the Statute of Elizabeth could, in othercases, be declaratory within the meaning of

section 1(i)(

i) of the Limitations Act. Based on the facts and law before me in this particular

case, there is nothing to suggest that a declaration under the SE or the FPA will, on its own, achieve the desired result for the Ginns. They need some intervention of further legal process. In Yellowbird, the Court expressly contemplated that further legal process included seizure: Yellowbird (QB) at para 35. [ 49 ] The wording of the prayer for relief is not determinative because otherwise, creative drafting could allow for remedial orders to be disguised as declarations, subverting the application of the Limitations Act : Yellowbird and Joarcam .

However, it is noteworthy that the prayer for relief in the 2015 Action is not limited to the declaration under the reviewable transactions legislation. Rather, it seeks further relief. [ 50 ] The relief sought in the 2015 Action does not fit easily into the definition of “remedial order” in

section 1 (

i) of the Limitations Act . It is definitely not an action for damages, and the duty with which it is seeking compliance is not obvious. However, it is, in substance, demanding that Ms. Feng comply with her duty to pay the 2009 judgment. Put in the negative, it is requiring compliance with a duty not to avoid creditors by way fraudulent transfers. [ 51 ] I have considered the possibility that the 2015 Action could be declaratory only in respect of the Defendant Mr. Feng. Arguably, he owed no duty to the Ginns that could fall within the definition of “remedial order” in

section 1 (

i) of the Limitations Act . This would be consistent with the result in Wills . However, in this particular case, I see no way in which the 2015 Action could ultimately proceed against Mr. Feng if Ms. Feng has immunity from liability. The 2009 judgment that gives the Ginns status as creditors is against Ms. Feng only. [ 52 ] The conclusion I have reached on the particular facts of this case is not inconsistent with the findings in Perry or Milavsky , the two cases most commonly cited for the proposition that actions under fraudulent preference or conveyance litigation are declaratory.

In Perry , the Ontario Court of Appeal was considering very different limitations legislation. The question was whether the claim under the Ontario Fraudulent Conveyances Act , RSO 1990, c F29 fit within the Ontario Limitations Act , RSO 1990, c L15 . At that time, only causes of action enumerated in the Limitations Act were subject to a limitation period. The question was whether the fraudulent conveyance action fit within one of the enumerated classes, the possibilities being: (1) an action on a simple contract; (2) an action upon the case; or (3) an action upon a “specialty”: Perry at para 18.

In elaborating on what amounted to “an action upon the case”, the Court found that such action has 3 fundamental aspects: a duty owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage suffered by the plaintiff as a result. It was in this context that the Court found that the legislation provided for a “declaratory type proceeding”, and did not give any right to damages or create a legal duty.

The Court was not making any finding as to whether the claim was for a remedial order, as that term is used in our legislation. [ 53 ] Ontario’s limitations regime has now changed and while the jurisprudence differs on exactly which limitations periods apply, the balance of authority is that reviewable transactions claims are subject to a limitations period: for example, see Anisman v Drabinsky , 2020 ONSC 1197 , aff’d 2021 ONCA 12 ; Conde v Ripley , 2015 ONSC 3342 ; Toronto Standard Condominium Corp No 1703 v 1 King West Inc , 2010 ONSC 2129 (Div Ct).

Ontario does not have the same exclusion for declarations. [ 54 ] In Milavsky , the case was different than the one at bar in a number of respects. First, the claim relating to fraudulent conveyance was intertwined with a claim for unjust enrichment based on a joint family venture. The plaintiff argued a constructive trust over a large body of assets. In those circumstances, it may well have been possible to give effect to a declaration that certain transactions were void through a global remedy that did not involve vesting, seizure or sale of any particular asset.

Also, I note that at least some of the impugned transactions were of money, not real property, which could have implications, and the Court also had other reasons for finding

summary judgment was not appropriate. [ 55 ] In my view, the result in this case is consistent with the underpinnings of limitation of actions legislation, which is that the right to bring action must be balanced against the need for certainty on the part of defendants. There must be some point at which a debtor and their transferee can have certainty that their transaction may no longer be impugned.

While the law would generally not rush to assist someone who has acted fraudulently, the Limitations Act does prima facie apply to claims of fraud. [ 56 ] Actions under the SE and the FPA were subject to the “catch all” limitation period of 6 years under the Limitation of Actions Act , which was in force prior to the enactment of the current Limitations Act : Limitation of Actions Act , RSA 1980, c L-15, section 4(1) (g).

There is no commentary suggesting that actions under the SE and the FPA were purposefully removed from the scope of the legislation: for example, see Alberta Law Reform Institute, Limitations, Report 55 (1989) and Alberta Law Reform Institute, Reviewable Transactions at para 87, note 62. [ 57 ] The result in this case is also consistent with the approach taken recently by Alberta courts in cases where the facts are at least analogous.

For example, see Singh v Kaler , 2017 ABCA 275 (declaration of resulting trust); Funk v Funk , 2016 ABQB 189 (claim for a declaration that a trust was a sham, including that it was void under the SE). [6] It is also consistent with the direction in Joarcam to read the exclusion for declarations in

section 1 (i)(

i) narrowly. Remedial Order or Enforcement of a Remedial Order [ 58 ] The Ginns also rely on the exclusion for “enforcement of a remedial order” in

section 1(i)(ii) of the Limitations Act . It is true that an action under the FPA or the SE is taken to further enforcement of a remedial order. However, in my view, these steps go beyond the type of enforcement contemplated in

section 1 (i)(ii). [ 59 ] While not determinative, ALRI’s Limitations report and annotated model legislation, which was substantially reflected in the Limitations Act , provide helpful guidance. ALRI described an enforcement order as “procedural in nature” and a matter for the Rules of Court: ALRI, Limitations at p 54. Actions under the FPA and the SE, which resolve a dispute as to whether a particular transaction is permissible, go beyond this description. This is perhaps best demonstrated by considering the ease with which the limitation periods prescribed by the Limitations Act apply to these types of claims. In this case, looking at

section 3 of the Limitations Act , it is quite easy to

see the impugned transaction as the injury and to consider at what point the Ginns knew or ought to have known it occurred, warranted bringing a proceeding, etc. The 2015 action is a substantive action unto itself. The analysis would not flow in the same way when considering a procedural enforcement measure such as the filing of a writ of enforcement or the issuance of a garnishee summons.

In those cases, there is no identifiable independent injury over and above whatever underlying injury founded the claim that gave rise to the judgment now sought to be enforced. [ 60 ] From a policy perspective, many agree that there should be a limitations period for reviewable transactions. The Uniform Reviewable Transactions Act prepared by the Uniform Law Conference of Canada in 2012 provides for a limitation period of one year: ALRI, Reviewable Transactions at para 88. Conclusion on

Summary Judgment Appeal [ 61 ] I am satisfied that the state of the record and the issues allow the limitations issue in the 2015 Action to be resolved on a

summary basis. The Fengs have met the burden of showing that there is no merit to the 2015 action and no genuine issue requiring trial, because the Limitations Act applies and the 2015 action was filed after the 2-year period. In all of the circumstances of this case,

summary disposition leads to a just result. The Master’s decision on

summary judgment was correct and the appeal is dismissed. EVIDENTIARY NOTE [ 62 ] Part of the record includes an Affidavit of a legal assistant filed by the Ginns on February 28, 2020, which in turn attaches affidavits of two police officers filed in a separate action brought by the Minister of Justice and Attorney General for Alberta against Ms. Feng and others. I have had no reference to the affidavits of the police officers, except for the purpose of being aware that such action and affidavits exist.

There was no opportunity to cross-examine the officers in this action, and their evidence, appended to the evidence of another person, is hearsay and cannot be admitted for the truth of its contents. OTHER INTENDED APPLICATIONS [ 63 ] The Ginns advised the Court that they intend to bring an application to annul Ms. Feng’s discharge from bankruptcy. They argue that in that context, it may be open to the trustee to revisit the issue of the conveyance of the home to Mr. Feng. The Ginns’ position is that the annulment application is unaffected by my decision on either of the appeals.

They simply hope that the certificate of lis pendens on title to the house at issue in the 2015 action would remain in place long enough to allow for the annulment application to proceed without transfer of the house in the meantime. The emphasis placed on the potential annulment application in argument caused me to question whether hearing the appeals was premature, but I decided to proceed. The annulment application is not before me and I make no findings in respect of it.

COSTS [ 64 ] If the parties are unable to agree on the costs of the appeals, they may write to my office within 30 days to establish a process for addressing costs. Heard on the 24 th day of November, 2020. Dated at Calgary, Alberta this 15th day of April, 2021. A. Grosse J.C.Q.B.A. Appearances: Geoffrey Boddy, Jensen Shawa Solomon Duguid Hawkes LLP for Herbert Ginn and Elsie Ginn Ashley Hahn, Miles Davison LLP for Jianweng Feng and Qi Lian Feng