For good reason, we have devoted many a blog to discussing the different limitation periods that may apply under the Limitations Act, 2002, S.O. 2002, C.24, Sch. B. (the “Limitations Act”), the Trustee Act, R.S.O. 1990, c. T.23 (the “Trustee Act”), and the Real Property Limitations Act (the “RPLA”). It’s critical that estate litigators, estate administrators, trustees and executors alike are aware of which Act applies to a potential cause of action and to act promptly.
The recent case of Simko v. Pirner, 2025 ONSC 6397, confirms that a person’s death does not operate to revive an expired claim while also providing a detailed refresher on the different limitation periods under the Limitations Act the Trustee Act and the RPLA.
Background
The Applicant co-estate trustee (“T”) commenced Applications (combined for the purpose of trial) as against the co-estate trustee (“D”) and her daughter (“S”), seeking to remove D as co-estate trustee and contending that a number of payments dating back to 2009 D and S received from the deceased mother were held on resulting trust.
As part of their motion to dismiss T’s Application, D and S argued that the limitation period to challenge the transactions had expired pursuant to the Limitations Act. In response, T argued that s. 38 of the Trustee Act provided an estate trustee with two years from the date of death of the deceased to advance a claim and therefore the Application had been brought within the relevant limitation period.
It is worth noting that it was common ground between the parties that while the transfers took place at varying dates during the deceased’s lifetime, all the transfers took place more than two and a half years after the most recent impugned transaction. Further, none of the parties disputed the deceased’s capacity at any material time to have made gifts or loans prior to her death.
The Court’s Analysis
Basic Principles of Limitation Periods
The Court began its analysis by summarising the basic legal principles applying to limitation periods:
The Limitations Act
- The Limitations Act provides for a basic 2-year limitation period from the date the claim was discovered (s. 4)
- A person with a claim is presumed to have knowledge on the day of the act or omission on which the claim is based took place, unless the contrary is proved (s. 5(2))
- The limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding in respect of the claim because of a physical, mental or psychological condition, but they are presumed to be capable unless the contrary is proven (s. 7)
- A limitation period set out in another Act that applies to a claim to which the Limitations Act applies is of no effect unless the provision is set out in a Schedule (s. 19), which includes s. 38(3) of the Trustee Act
The Trustee Act
- A two-year limitation period applies to claims that could be made by a deceased for injury or damage to property (s. 38(1))
- Except in cases of libel or slander, a person may maintain an action against an executor or administrator of the person liable for the wrong (s. 38(2))
- An action under s. 38 is not to be brought after the expiration of two years from the date of death of a deceased (s. 38(3))
The RPLA
- Claims involving real property are governed by the ten-year limitation period under the RPLA
S. 38 of the Trustee Act Does Not Extend the Two-Year Limitation Period
With those principles in mind, the Court rejected the Applicant’s arguments that s. 38 of the Trustee Act provided him with two years from the date of the deceased’s death to challenge the impugned transactions, finding that s. 38(3) of the Trustee Act does not extend the limitation period that would have been applicable had the deceased not died and been able to carry on her action.
In other words, the deceased had two years from the date she “discovered” the last impugned transaction to bring a claim within her lifetime under the Limitations Act. While she was still alive, the Limitations Act applied to her claim. Then, had the deceased died during the two-year period, ss. 38(1) and (3) of the Trustee Act would have permitted her estate to pursue those claims on her behalf. But s. 38(3) would have only capped the limitation period and could not extend it.
This conclusion also serves an important public policy reason. Had the Applicant’s argument succeeded, it “would have opened up indeterminate litigation by the estate against all those persons with whom the deceased might have interacted within the limitation period. That result does not accord with the purposes, however harsh of limitation periods.”
Thanks for reading!