For the lay reader of these blogs, Ingram v. Kulynych Estate, 2024 ONCA 678 (“Kulynych Estate“) is the sort of case that estates and trusts nerds fantasize about as a romantic evening.

Yes, we really do love long-winded academic colloquies about the harmonizing interplay between provincial statutes and judicial treatises on the applicability of limitation periods to equitable trust claims.

Be still my beating heart.

So it was hardly a surprise that estates and trusts lawyers across Ontario collectively rejoiced when the Ontario Court of Appeal released its decision in Kulynych Estate to give some much-needed clarity on the hullabaloo generated by the decision of the Superior Court of Justice.

In a decision that follows on the heels of Kulynych Estate, the Ontario Court of Appeal in Gomes v. Da Silva, 2024 ONCA 792 considered an order of the Superior Court of Justice dismissing the appellant’s claim for a resulting trust over a family home and granting the respondents’ claim for its sale and partition.

The four siblings in Da Silva had been unable to agree on the ownership and disposition of the family home, which had formerly been in the name of their deceased mother. At the time the home was purchased, the deceased mother and father had held an undivided 50% interest as joint tenants and the appellant held the other 50% interest. Following the father’s death, title to the home was then held by the mother (50%) and appellant (50%) as tenants in common. Finally, prior to her death, the mother transferred her interest to all four of the siblings. Thus, the appellant held title to 62.5% of the home while the respondent siblings each held 12.5% interest in the home.

For the purposes of this blog, one of the issues on appeal concerned the appellant’s argument that his claim was statute-barred under the ten-year limitation period pursuant to s. 4 of the Real Property Limitations Act (the “RPLA”). The Ontario Court of Appeal framed its analysis around the RPLA and found that the lower court “correctly stated that s. 4 of the RPLA creates a ten-year limitation period for an action to recover any land. This includes claims advanced by way of resulting or constructive trust.”

None of the parties contended that the Trustee Act provided the relevant limitation period, so the appellate court was not being asked to consider a Kulynych Estate problem. In fact, Kulynych Estate was not referenced in the decision. However, we may be able to draw some of our own conclusions, in light of the remarks made in Kulynych Estate, as to why the RPLA was the appropriate statute to apply in these circumstances.

I believe the Da Silva Court may have been guided by the specific language of s. 4 of the RPLA, which provides that the legislation applies to “…an action to recover any land…”.

Of note is the fact that the appellant in Da Silva was solely claiming an interest in real property, and not an interest all of the estate assets, which would have elevated his claim far beyond just his deceased mother’s real property. In other words, the appellant’s claim might be regarded properly as a mere claim to recover his interest in the home without any request for further consideration of the estate assets.

By contrast, in Kulynych Estate, the respondent was making an equitable relief claim for “[a]n Order that [the respondent] is entitled to an interest in the Estate by virtue of Constructive Trust or Resulting Trust in relation to all estate assets…”.

While I acknowledge this distinction may seem somewhat artificial, the claims being advanced in Da Silva and Kulynych Estate were arguably substantively different based on the relief sought, and this may have been the crux of the decision to apply the RPLA and not the Trustee Act in Da Silva.

For a more detailed treatment of the decision in Kulynych Estate, please feel free to take a look at some of our other resources:

• Stuart Clark’s blog – Ingram v. Kulynych Estate – Does s. 38 of the Trustee Act apply to incapable beneficiaries?
• Hull on Estates #701 with Natalia Angelini and Diana McBey – Competing Limitation Periods: A look from Ingram v. Kulynych Estate
• Hull on Estates #703 with Jonathon Kappy and Darien Murray– The Evolving Context Behind Applicable Limitation Periods
• Court of Appeal Clarifies Limitation Period Applicable to Trust Claims Against Estates Involving Real Property by Suzana Popovic-Montag

Thanks for reading!