Unlike conventional civil litigation, which is generally characterized by the commencement of proceedings by way of Statement of Claim, estate litigation is more often commenced by way of Notice of Application. This is because Rules 14.05 and 75 of the Rules of Civil Procedure specifically contemplate this manner of proceeding. But what bearing does this have on Limitations? A recent (and thus far unreported) decision of Justice Myers on the Toronto Estates List shines a light on this question.
Chrobotek v. Grossman is a legal proceeding initiated in May, 2016 by Morris Chrobotek, the son of the late Linda Chrobotek, who died in October, 2015. Mr. Chrobotek initially commenced his proceeding by way of an Application which sought an accounting and “directions regarding pleadings” regarding actions taken by his sister prior to and after the passing of Mrs. Chrobotek. The proceeding subsequently became mired in delay for various reasons including the Covid pandemic and repeated changes of counsel. In May, 2023, seven years after the issuance of the Notice of Application, the Respondent’s new counsel and counsel for the Applicant agreed to reconstitute the proceedings as an action. An Order was made on consent directing the Applicant to issue a Statement of Claim Pursuant to Order Giving Directions. Upon receiving the Statement of Claim, the Respondent, after discoveries, brought a motion for Summary Judgment, arguing that the Statement of Claim was a new pleading and raised claims that were statute-barred.
In resisting the motion for summary judgment, the Applicant (now Plaintiff) asserted that the original Application for Directions was an originating process and thereby advanced his claims well within the limitation period. The Respondent Moving Party contended that the action was statute-barred, arguing that applications for directions did not constitute claims under the Limitations Act, 2002.
In finding in favour of the Plaintiff and dismissing the motion for summary judgment, Justice Myers made the following observation:
In the 2016 application, Morris Chrobotek plainly claims recovery of his chattels, and he attacks the providence of the house sale, and the subsequent use of proceeds by his mother and sisters. Mr. Chrobotek’s affidavit supporting his 2016 application, has to be considered as part of, or at least ancillary to, the pleadings. It makes clear the facts on which relief was sought at the time; included facts relating to all of the recovery of his chattels, to attacking the providence of the sale, and the use of proceeds. The Statement of Claim in this case is not a new assertion of new causes of action. It is much more akin to an action that is then amended with a new Statement of Claim. When that happens, when an amended Statement of Claim is produced in an action, the issue for limitation period purposes is whether the facts asserted in the new Statement of Claim or the amended Statement of Claim, were already asserted in the initial claim or whether the amended claim has new facts asserting new causes of action. (Emphasis added)
In the final analysis, the decision serves as a reminder that careful drafting and martialling of the necessary facts is critical to preserving a party’s rights when a proceeding is commenced by way of Notice of Application. Unlike a Statement of Claim where practitioners are taught to avoid “pleading evidence”, the supporting affidavit in a Notice of Application must be viewed as a critical part of the initial pleading, with a view towards preserving rights that may otherwise be defeated by the expiry of a limitation period.
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