Is a notice of objection to accounts, filed by a responding party in the context of an Application to pass accounts by an estate trustee, a “claim” within the meaning of the Limitations Act, 2002?

The answer to this question could have significant consequences for individuals with a financial interest: the general two-year limitation period under the Limitations Act, 2002 may apply to a “claim,” and objections that fall outside the period may be statute-barred.

The Honourable Justice Mulligan of the Ontario Superior Court of Justice addressed this issue in Re Wall Estate, 2018 ONSC 1735.

A Recent History of Limitation Periods and Passing of Accounts

In Armitage v The Salvation Army, 2016 ONCA 871, the Court of Appeal held that a passing of accounts by an attorney for property under the Substitute Decisions Act was not subject to the general two-year limitation period under the Limitations Act, 2002.

Writing for a unanimous court, Justice Hourigan noted that there was historically no statutory limitation period for the passing of accounts. Justice Hourigan concluded that the enactment of the Limitations Act, 2002 did not establish a two-year limitation period for passing of accounts, because a passing did not fit the definition of a “claim” as defined by the Act. Given the Court’s conclusion, the equitable doctrine of laches and acquiescence were the only defences available.

However, in a footnote to the judgment, Justice Hourigan specifically noted that the judgment did not mean that the Act categorically has no applicability to passings. In particular, Justice Hourgan left open the possibility that the filing of a notice of objection in a passing of accounts is a “claim” within the meaning of the Act.

Wall Estate: Is An Objection A Claim?

In Re Wall Estate, the testator died in 2005. The Estate Trustee had annual meetings with the testator’s two children, who were the beneficiaries of testamentary trusts. However, the beneficiaries did not sign releases and the Estate Trustee did not pass his accounts.

The testator’s daughter subsequently compelled a passing of accounts from the Estate Trustee in 2014, and the Estate Trustee was removed in 2016. The testator’s daughter filed an objection to the Estate Trustee’s accounts in June 2015.

The Estate Trustee brought a motion to strike the objections to his accounts, and argued that he was not required to address objections to his accounts for the period prior to December 31, 2012 due to the Limitations Act, 2002, laches or acquiescence.

After discussing Justice Hourigan’s decision in Armitage, Justice Mulligan concluded that the notice of objection filed by the testator’s daughter was not statute-barred:

In my view, if the passing of accounts does not constitute a claim, I am not satisfied that a Notice of Objection is a claim.  In filing a Notice of Objection, the beneficiary is seeking answers to questions about steps taken by the estate trustee during the currency of an administration of an estate.  Answers to those questions may assist the beneficiary in consenting to the passing of accounts without the necessity of a formal hearing.  An absence of consent will require a formal hearing.  A formal hearing will assist the court in determining if the fees sought and investment steps taken are appropriate under all the circumstances.

The objections taken at their highest may result in a reduction or loss of compensation for the estate trustee or other remedies.  In this case, if the objections are successful to any extent, no additional funds would be payable immediately to Elizabeth as beneficiary of the discretionary trust.  The corpus of the estate would be enlarged, increasing the funds available for the discretionary trust, and ultimately, could increase the amount available to be paid to Elizabeth, but only if she survives to age 60.  On the facts here, I am not satisfied that the Notice of Objection rises to the level of a “claim” as contemplated by the Limitations Act, 2002.

What’s On the Other Side of the Wall Decision?

Given that the question was left open in Armitage, it remains to be seen if Re Wall Estate or another case that raises this limitations defence will be appealed to a higher court.

In addition, Justice Mulligan noted that the objections did not rise to the level of a claim “on the facts here.” Thus, Re Wall Estate leaves open the possibility that the Court may reach the opposite conclusion after making a fact-specific enquiry.

In tomorrow’s blog post, I will discuss the issues of laches and acquiescence, which were also pleaded as defences in Re Wall Estate.

Thank you for reading,

Umair Abdul Qadir