Characterization of Limitation Statutes in Canadian Private International Law: the Rocky Road of Change

Prior to the Supreme Court of Canada's decision in Tolofson v. Jensen limitations statutes were characterized, prima facie, as procedural for purposes of Canadian private international law. The principal authority for this characterization was the 1835 case of Huber v. Steiner in which an action was brought on a promissory note made in France in 1813 and payable in 1817. The defendant argued that the French Code de commerce applied and that the right of action was extinguished by the provision that "all actions ... prescribe themselves by five years reckoning from the day of protest ..... Tindal C.J. recognized the general rule that so much of the law as affects the rights and merits of the contract, all that relates "ad litis decisionem," is adopted from the foreign country; so much of the law as affects the remedy only, all that relates "ad litis ordinationem," is taken from the "lex fori" of that country where the action is brought. Applying this right/remedy distinction, Tindal C.J. was not satisfied that the French prescriptive law extinguished the contractual right and held that it merely limited availability of a remedy before the French courts.