The calculation of limitations periods is always of concern for litigators, and we do our best to identify the appropriate dates and devise tickler systems so that we do not prejudice our clients’ potential claims or actions once it is clear that actions again an estate cannot be maintained. It’s a technical area of law that rightfully deserves attention.
In Levesque v. Crampton Estate, 2017 ONCA 455, the question before the court dealt with the limitations period for contribution proceedings by one tortfeasor against another, being an Estate. Chief Justice Strathy set out the question as follows:
2 Section 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 contains a two-year limitation period, running from the date of death of the wrongdoer, for an action against an executor or administrator for a wrong committed by the deceased.
3 Section 18 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, addresses the commencement of the limitation period applicable to a claim for contribution and indemnity between joint tortfeasors. It provides that a claim for contribution and indemnity is “discovered” and, therefore, the limitation period begins to run, on the day on which the wrongdoer seeking indemnity is served with the plaintiff’s claim.
4 When one joint tortfeasor has died and the other makes a crossclaim for indemnity against his or her estate, which limitation period applies? If, as in this case, the crossclaim is made more than two years after the death of the first tortfeasor, is the second tortfeasor’s claim for contribution and indemnity barred by the Trustee Act, even though it is made within two years of being served with the plaintiff’s claim? Can the claim for indemnity against the estate be time-barred even before the surviving tortfeasor is sued?
After a careful analysis of the limitations periods set out in the Trustee Act and the Limitations Act, which are at variance with each other, Strathy CJO:
47 By the terms of s. 19(4) of the Limitations Act, 2002, limitations provisions set out in the Schedule prevail over the provisions of the Limitations Act, 2002. As s. 38(3) of the Trustee Act is set out in the Schedule, it must prevail if it applies.
48 This court reached the same conclusion in Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, 94 O.R. (3d) 401, at para. 26: “In these circumstances, s. 19(4) is clear. If there is a conflict between a limitation period established by a provision referred to in s. 19(1), such as s. 38(3), and a limitation period established by any other provision of the Limitations Act, 2002, the limitation period established by a provision such as s. 38(3) prevails.”
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51 The Limitations Act, 2002 is based on discoverability. Section 18(1) deems the claim to be discovered on the date the claim is served on the person who seeks contribution or indemnity. In contrast, s. 38(3) of the Trustee Act is a “hard” or absolute limitation period. It is triggered by a fixed and known event — the death of the party against whom a claim is made.
52 The purpose of the Trustee Act limitation period is clear. It is to provide a remedy for a limited time, without indefinite fiscal vulnerability to the estate…
The odd result in this case is that the claim for contribution and indemnity sought to be made against the Estate was statute-barred notwithstanding that it was not discoverable within the 2-year limitation period set out in the Trustee Act. In other words, the public interest in dealing with estate administration expeditiously trumps questions of fairness to litigants. One expects that contribution proceedings will be pleaded at the outset of tort proceedings.
To my mind, Levesque v. Crampton Estate is a useful decision that can assist in advancing the argument that there is an important public interest in efficient administration of Estates that should be considered by the Court generally.
Have a nice day everyone,
David