The answer to this question varies depending on the circumstances.

The main idea is that the basic limitation period only applies to “claims”.

Section 4 of the Limitations Act, 2002 provides that no proceeding shall be commenced after the second anniversary of the day on which the claim was discovered, while section 1 states that a “claim” means a claim to remedy an injury, loss, or damage that occurred as a result of an act or omission. 

To determine whether the basic limitation period applies, therefore, we must first determine whether there is a “claim”.

Three Ontario cases have commented on whether the basic limitation period applies to passing of accounts litigation:

• Armitage v Salvation Army, 2016 ONCA 971, 406 D.L.R. (4^th) 563;
  
• Wall v Shaw, 2018 ONCA 929, 43 E.T.R. (4^th) 1; and
  
• Estate of Celeste Dos Santos (Re), 2022 ONSC 3824 (CanLII).

The key points of law from each case are noted below:

Armitage

• An application by an attorney for property to pass their accounts is not a “claim” and is therefore not subject to the Limitations Act.
• Such an application merely seeks court approval of the passing of accounts, and does not seek a remedy for any loss, injury or damage.

Wall

• A notice of objection to pass accounts is not subject to the Limitations Act, on the basis that a notice of objection does not commence a proceeding to pass accounts.
• Section 4 of the Limitations Act only addresses the commencement of proceedings, and does not limit the ability of a person to respond to or participate in a proceeding commenced by another.

Dos Santos

• In Dos Santos, the applicant brought an application to compel his mother’s attorney for property to pass their accounts for the attorney period.
• Eight years had elapsed between the applicant’s mother’s date of death and the date the applicant commenced legal action.
• Justice Penny of the Ontario Superior Court of Justice made the following findings:
  • an application to compel an attorney to pass accounts is a “claim” within the meaning of the Limitations Act;
  • requiring the attorney for property to account for transactions that had occurred more than eight years ago was unfair and unreasonable; and
  • given the nature of the application, and the unduly long delay, the applicant had run out of time to bring his application. 
• Penny J, however, never explicitly said that the 2-year basic limitation period applies to claims compelling a passing of accounts. Therefore, this case merely suggests that there may be a limitation period preventing someone from applying to compel a passing of accounts more than 2 years after a Deceased’s date of death.

As illustrated by the above cases, there is no universal rule for whether the basic limitation period applies to passing of accounts litigation. Rather, the applicability of the limitation period depends on the specific type of relief requested.

Thank you for reading and have a nice day!

Ian and James Macfarlane