Yesterday I blogged about the ability to potentially insulate claims that otherwise may be statute barred by the expiry of a limitation period if the claim is brought within the confines of an Application to Pass Accounts. In such a blog I also discussed section 49(3) of the Estates Act, and the court’s ability to award damages payable by an Estate Trustee within the Application to Pass Accounts itself without a separate trial being required, thereby creating the potential for a beneficiary to pursue damages against an Estate Trustee for claims of breach of trust or negligence without any limitation period concerns.
The powers of the court under the Estates Act in relation to an Application to Pass Accounts goes beyond the ability to award damages, as under section 49(4) of the Estates Act the court has the ability to direct a separate trial of an issue raised within a Notice of Objection to Accounts, complete with the delivery of separate pleadings and discovery. Specifically, section 49(4) provides:
“The judge may order the trial of an issue of any complaint or claim under subsection (3), and in such case the judge shall make all necessary directions as to pleadings, production of documents, discovery and otherwise in connection with the issue.”
The potential interplay between the ability to order a separate trial of an issue in combination with the apparent confirmation in Wall v. Shaw, 2018 ONCA 929, there are no limitation periods for objections raised in a Notice of Objection to Accounts creates strategic possibilities for a beneficiary, as they could conceivably still have a full trial of an issue that otherwise would be statute barred by the expiry of the limitation period, including the delivery of a Statement of Claim and Statement of Defence and discoveries, if such a claim is originally insulated within an Application to Pass Accounts and a separate trial of an issue then sought in accordance with section 49(4) of the Estates Act.
Thank you for reading.