Redress Risk Management (post until May 31/19)

Court of Appeal says German 30-Year limitation applies

By Jon-David Giacomelli

In Bieberstein v. Kirchberger, 2013 ONCA 629, the Court Of Appeal for Ontario recently held that a trial judge had correctly ordered dismissal of motions for summary judgment brought by Gabriel Kirchberger, a guarantor of loans made to his real estate companies by German banks in 1992 and 2000. In doing so, the court found that the 30-year limitation period applicable in Germany applied and thus summary judgment is not applicable under the Ontario limitations statute.

The guarantees in question were in the form of a particular type of German instrument called SCEs. SCEs are not issued by a court under the German Code of Civil Procedure but an SCE may be enforced in the same manner as a German judgment. The respondent acquired the SCEs from the German banks in 2008 and 2009.

In January 2010, actions were commenced against the appellants in Ontario (where Kirchberger then resided) based on the SCEs.

The motions judge found that the SCEs were not foreign judgments and that the respondent’s action was therefore not barred by the Limitations Act, 2002, S.O. 2002, c.24, Sched. B because German law dictated a 30-year limitation period, which applied in the circumstances.

The Court of Appeal held that the German SCEs were not akin to judgments under the German Civil Code. Further, the court held that there was no error on the part of the motions judge related to making findings on matters not pled as was alleged. Further, the Court of Appeal held that there was no misapplication of German law and therefore the 30-year limitation period under German law was properly applicable.

The court ordered that the appellants pay the respondents costs fixed in the amount of $40,000 inclusive of disbursements and applicable taxes.

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