Tag: Limitation Periods

18 Nov

What happens when you are out of time to serve a claim?

Doreen So Continuing Legal Education, Estate Litigation, Litigation, Uncategorized Tags: , , , 0 Comments

A recent master motions in the Estate of Robert William Drury Sr., 2019 ONSC 6071, considered the issue of an extension of time to serve a statement of claim.

Robert Sr. owned a property where the defendant Shirley lived with her spouse Hugh Drury.  When Hugh Drury died, Robert Sr. sought vacant possession of his home.  Robert Sr. died on September 8, 2016.  Days later there was a fire on the property on September 24th and Shirley was criminally charged with arson.

Almost two years later, the estate trustee for Robert Sr.’s Estate issued a statement of claim for malicious and intentional arson damage, or gross negligence causing loss of enjoyment of life, or damages for loss of property.   That claim was issued on September 19, 2018 while Shirley’s criminal proceedings were underway.  Pursuant to Rule 14.08(1), Robert Jr. had 6 months to serve the civil claim on Shirley which expired on March 19, 2019.  Shirley was not served until June 14, 2019 when Robert Jr. brought a motion for an extension of time.

In applying the test that was set out by the Court of Appeal in Chiarelli v Wiens, 2000 CanLii 3904, the extension of time was ultimately allowed by Master Sugunasiri.

The delay was only three months and the prejudice to Shirley was minor.  Robert Jr. explained that he acted on the advice of counsel when the decision was made to serve Shirley after the conclusion of the criminal proceeding.  This decision was not personal or contemptuous.  As for Shirley, while memories fade over time, the criminal proceeding was found to be an ameliorating factor that preserved her evidence for the civil proceeding.

In reaching this decision, Master Sugunasiri also considered an instance where an extension of time was denied because the delay was caused by the Plaintiff’s decision not to serve the claim until he had enough money to fund the proceeding.  In that case, the Court found that the Plaintiff ought to bear the consequences of the risk that he took under the Rules.

Thanks for reading!

Doreen So

Turning off an alarm clock
11 Dec

Preserving the Right to an Equalization of Net Family Properties

Nick Esterbauer Estate & Trust, Support After Death, Wills Tags: , , , , , , , , , , , , , 0 Comments

A recent decision of the Ontario Superior Court of Justice highlights the importance of preserving a surviving married spouse’s ability to elect for an equalization of net family properties within the six-month limitation period.

Upon death, a surviving married spouse in Ontario can elect for an equalization of net family properties under Sections 5 and 6 of the Family Law Act instead of taking under the predeceasing spouse’s will or, if the spouse has not left a will, on intestacy.  Subsections 6(10), 6(11), and 7(3)(c) of the Family Law Act provide that the surviving spouse must ordinarily make an election within six months of date of death and not after that date.  The Court may, however, extend the election deadline in the event that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and, (c) no person will suffer substantial prejudice by reason of the delay (subsection 2(8) of the Family Law Act).

Courts have reviewed the circumstances in which an extension is typically ordered.  The requirement that the delay be incurred in good faith has been interpreted as meaning that the party has acted honestly and with no ulterior motive (see, for example, Busch v Amos, 1994 CanLII 7454 (ONSC)).

In Mihalcin v Templeman, 2018 ONSC 5385, a surviving spouse had commenced two claims with respect to the estate of her late husband and an inter vivos gift made to a live-in caregiver.  However, neither of the proceedings had sought any relief relating to an equalization of net family properties, nor did the wife take any steps to make an election or to extend the time within which she was permitted to do so.  The Court reviewed whether the delay in making the election was in good faith.  The evidence regarding the reasons for the delay in electing for equalization were considered to be vague and insufficient to satisfy the evidentiary burden that the delay was incurred in good faith.  Accordingly, the applicant was not permitted to amend her pleadings to incorporate this relief.

Justice Bruce Fitzpatrick commented as follows with respect to the importance of limitation periods, generally (at para 48):

I am mindful of the general importance of limitation periods for the conduct of litigation. There is an obligation on parties to put forward all known legitimate claims within certain time limits. In this case, the time limit was relatively short. I think it cannot be readily ignored. The evidentiary record is not sufficient for me to say that justice requires me to exercise my discretion in favour of allowing [the applicant] to amend her claim so as to include a claim for equalization in all of the circumstances.

Where an equalization of net family properties may be sought at a later time (for example, pending the outcome of a will challenge or dependant’s support application), it is prudent to seek an extension well before the expiry of the six-month limitation period as courts may or may not assist a surviving spouse in seeking this relief down the road, if and when it may become advisable.

Thank you for reading,

Nick Esterbauer

 

Other blog entries/podcasts that may be of interest:

 

27 Nov

Hull on Estates #560 – Wall v. Shaw – Limitation Periods and Passing of Accounts

76admin Estate & Trust, Estate Planning, Hull on Estates, Litigation, Podcasts Tags: , , , , , 0 Comments

Today on Hull on Estates, Stuart Clark and Doreen So discuss the recent decision of Wall v. Shaw, 2018 ONCA 929, and its potential impact upon the availability of limitations defences in an Application to Pass Accounts.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark.

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05 Oct

The Blunt Force of Limitation Periods

Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , 0 Comments

“No one likes to see a limitation period applied to dismiss a claim. That said, there are good reasons for limitation periods. This case is an example of why they exist.”

So says Justice Nakatsuru in the opening line of his decision of Sinclair v. Harris, 2018 ONSC 5718 (CanLII).

There, the estate trustees of the estate of Virginia Rock (“Rock”) sued Merilyn and Frederick Harris (“the Harris’s”), claiming an equitable interest in lands purchased by the Harris’s, as part of the funds for the purchase of the lands were provided by Rock.

There, the relevant time line was as follows:

July 12, 2000:             Rock provides money to the Harris’s to buy a property

August 5, 2003:           The Harris’s sell the property. Rock was apparently aware of this.

November 17, 2015:   Rock dies

February 24, 2017:     Rock’s estate trustees commence the action

Justice Nakatsuru found that the 10 year limitation period under the Real Property Limitations Act applied. He disagreed with the estate trustees’ position that no limitation period applies to a claim for resulting trust. As the claim was a claim for the recovery of land (or “money to be laid out in the purchase of land”), the limitation period in the Real Property Limitations Act applied.

The court held that the limitation period would have commenced on the date the funds were advanced. Alternatively, it would have run from the time when the Harris’s sold the property. Under either interpretation, the limitation period had passed.

The action was dismissed.

Justice Nakatsuru said that “No one likes to see a limitation period applied to dismiss a claim.” No one other than a defendant.

Footnote: Justice Nakatsuru has been called the “poetic” judge and lauded in Macleans Magazine for his “heartfelt, easy-to-read rulings”. For an excellent example of this, see his decision on a bail application in R. v. Sledz, 2017 ONCJ 151 (CanLII).

Have a great weekend.

Paul Trudelle

09 Jan

Hull on Estates #537 – Calderon Estate: Standing and Limitation Periods

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Trustees Tags: , , , , , , , , 0 Comments

In today’s podcast, Jonathon Kappy and Umair Abdul Qadir discuss the Honourable Justice McEwen’s recent decision in Calderon Estate v Prince, 2017 ONSC 6584, on the issues of standing of a non-party and the application of the two-year limitation period under the Trustee Act.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

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13 Jun

Hull on Estates #522 – Limitation Periods and Statutory Guardianship

76admin Guardianship, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

Today on Hull on Estates, Suzana Popovic-Montag and Umair Abdul Qadir discuss the recent decision of the Honourable Justice McNamara in Shaw v Barber, 2017 ONSC 2155, regarding the tolling of the limitation period for dependant’s relief claims under Part V of the Succession Law Reform Act when the Office of the Public Guardian and Trustee is acting as the statutory guardian for an incapable person.

 Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
26 May

When does the limitation period run when the PGT is statutory guardian?

Doreen So Capacity, Continuing Legal Education, Elder Law, Estate & Trust, Executors and Trustees, General Interest, In the News, Litigation, News & Events, Power of Attorney Tags: , , , , , , , , , 0 Comments

The applicability of limitation periods to estates, trusts, and capacity matters is crucial for litigators to consider.  In a recent decision of the Superior Court of Justice, the Court was asked to consider the application of the limitation period in Part V of the Succession Law Reform Act (“SLRA”) to a claim that was advanced by the Public Guardian and Trustee (the “PGT”) as the litigation guardian of an incapable support claimant.

Shaw v. Barber, 2017 ONSC 2155, is an important precedent for the proposition that limitation periods do not run against the incapable person from the day that the PGT becomes his/her statutory guardian of property.  By operation of section 16(5) of the Substitute Decisions Act, 1992, the PGT automatically becomes an incapable person’s statutory guardian of property the moment they receive a certificate of incapacity from the assessor.  In Shaw v. Barber, the dependant support claimant, Lois Shaw, was assessed and found to be incapable of managing property on February 16, 2015 and a copy of the certificate was sent to the PGT on or about February 25, 2015.

Prior to the assessment, Ms. Shaw lived with Frank Cyril Barber on the date of his death, although they were not married.  Mr. Barber died in August, 2014, leaving a Will which named his son as the sole Estate Trustee and beneficiary of his Estate.  A Certificate of Appointment of Estate Trustee with a Will was issued to Mr. Barber’s son on February 5, 2015.  Pursuant to section 61(1) of the SLRA, an application for dependant support may not be made six months after the grant of probate, subject to the Court’s discretion in section 61(2) to allow claims against the undistributed portion of an estate.  Without considering the Court’s discretion in section 61(2) of the Act, Justice McNamara found that Ms. Shaw’s claim for dependant support was not statute barred despite the fact that it was issued, one year after six months from probate, on August 5, 2016.

In his reasoning, Justice McNamara considered the tolling provision applicable to incapable persons while he/she is not represented by a litigation guardian in section 7 of the Limitations Act, 2002 (which applies to the section 61 of the SLRA).  The turning point then becomes whether a guardian of property is automatically a litigation guardian in relation to the claim at issue since a guardian has the power to do anything the incapable person may do except make a will.  In this case, there was an affidavit from PGT counsel which explained the time consuming investigations involved when the PGT becomes a statutory guardian of property because of the lack of first-hand information from the incapable individual.  Justice McNamara determined that a guardian of property shall act as litigation guardian when he/she has determined that there is a basis for exercising their authority in that role, and that imposing a limitation period from the date in which the PGT becomes statutory guardian is contrary to the Limitations Act and it would create impossible timelines and potential injustice for this vulnerable group.  Furthermore, Justice McNamara was also persuaded by the fact that the Estate Trustee in this case will not be prejudiced by the delay, given that he is also the sole beneficiary, and that he was aware all along that the PGT was considering a claim against the Estate.

This case is also an example of the latitude that Courts may accord to large-scale claimants as seen in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709.

Please do not hesitate to contact our firm for a copy of Justice McNamara’s reasons in Shaw v. Barber and click here for comments from Russel Molot, counsel for the PGT in this matter, as reported in the Law Times.

Doreen So

15 Feb

Recent Decisions on Section 38 of the Trustee Act

Suzana Popovic-Montag Trustees Tags: , , 0 Comments

The Ontario Superior Court recently considered the application of section 38 of the Trustee Act in John C. Chaplin v. First Associates Investments Inc. et al and Abrahamovitz v Berens.

Section 38(1) of the Trustee Act states:

Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

In Bonaparte v. Canada (Attorney General), the Court held that in considering whether a wrong falls within the ambit of s38(1), “the focus is not upon the form of the action but whether the alleged wrong constitutes an injury to the person.” The courts have held that this section applies to claims in tort, contract, and breach of fiduciary duty.

In John C. Chaplin, an Estate commenced an action against an investment advisor for making speculative investments, which resulted in losses. In this case, the Court seems to expand the scope of s. 38(1) further, to include actions for purely economic loss, stating:

The property of the deceased, being her money, was allegedly destroyed in value due to the wrongful acts of Mr. Monaghan. Black’s Law Dictionary includes in the definition of “injury” the “violation of another’s legal right, for which the law provides a remedy; a wrong or injustice” and “any harm or damage”. That is broad enough to include the claims here for damages arising from the actions of Mr. Monaghan who was a registered investment advisor with First Associates.

The court also considered the limitation period in section 38(3) of the Trustee Act, which states:

An action under this section shall not be brought after the expiration of two years from the death of the deceased.

The Court held that this limitation period is strict and that the discoverability rule does not apply. This limitation period applies both to claims by and against the estate, under s. 38(2). Moreover, in Abrahamovitz v Berens the Court held that the section does not extend or toll a limitation period created by the Limitations Act, but simply passes the right to commence an action from the deceased to the personal representative if the cause of action arose before death.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Fraudulent Concealment

Limitation Periods – Demand Promissory Notes

The Limitation Period Applicable to Equitable Title

 

 

24 Jan

Hull on Estates #503 – The applicability of limitation periods

Hull & Hull LLP Beneficiary Designations, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Power of Attorney, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Noah Weisberg discuss the applicability of limitation periods to power of attorney accounting in the case of Armitage v The Salvation Army.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Noah Weisberg.

18 Jan

When Does an Attorney for Property Lose the Right to Claim Compensation?

Suzana Popovic-Montag Passing of Accounts, Power of Attorney Tags: , 0 Comments

The Ontario Court of Appeal recently considered the issue of the applicable limitation period for claims for compensation on a passing of accounts. In Armitage v The Salvation Army, the Court held the Limitations Act, 2002 does not apply to claims for compensation on a passing of accounts.

Facts

The Respondent in this case was the deceased’s power of attorney for property and personal care, as well as estate trustee. The Appellant was the sole beneficiary of the deceased’s estate. The principal issue in this case was whether the Respondent’s claim for compensation was statute barred.

The estate trustee was appointed the deceased’s attorney for property and personal care in 1990, 2001, and 2007. In 2006, the deceased was admitted to hospital and then to a nursing home, where he remained until his death on February 5, 2013. The attorney submitted her claim for attorney compensation on September 5, 2013. She issued a Notice of Application on January 30, 2015 and a further application to pass estate accounts on January 30, 2015 at the request of the sole beneficiary of the estate.

Decision of the Application Judge

The parties disagreed about how to calculate the applicable limitation period for the claim for attorney compensation. The attorney took the position that any claim must be commenced within two years of the death of the person who granted the power of attorney. She explained that she was unsure about whether she would take compensation because it was uncertain how long the deceased would live and what his financial needs would be. The beneficiary took the position that section 40(2) of the Substitute Decisions Act, 1992 gives an attorney the option to claim compensation each year and that the end of each year triggers the beginning of the two year limitation period.

The application judge held that the date of the deceased’s death terminated the power of attorney and therefore triggered the limitation period. An attorney for property would then have two years from the date of death to claim compensation.  The application judge approved the attorney and estate trustee claims for compensation.

Decision of the Court of Appeal

The Court of Appeal upheld the application judge’s approval of the claimed compensation, but for different reasons. The Limitations Act, 2002 was intended to deal with all civil claims, grounded in equity, common law, or statute. However, the Limitations Act, 2002 only applies a “claim,” which is defined as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” The court held: “in seeking court approval of the passing of accounts, an attorney for property is not seeking redress for any loss, injury, or damage. Rather, he or she is seeking approval from the court of his or her actions in managing the property, including approval for compensation previously taken or now sought. A passing of accounts application is the opposite of remedial; it is a process that seeks a court order that no remedy is necessary with respect to accounts.”

Therefore, a passing of accounts is not a “claim” within the definition of the Limitations Act, 2002 and not subject to the general 2-year limitation period. The only defences available on a passing of accounts are the equitable defences of laches and acquiescence. The court, however, does leave open the possibility that the filing of a notice of objection by a beneficiary after an attorney has sought a passing of accounts might fall under the definition of “claim” in the Limitations Act, 2002.

This decision allows an attorney for property to make his or her own claim for compensation subordinate to the needs of the person who granted the power of attorney by waiting until the death of the grantor, when the money is no longer needed for the grantor’s care.

Thank you for reading.

Suzana Popovic-Montag

Other articles you might enjoy:

Limitation Periods – Passing of Accounts

Application to Pass Accounts – Reply to Notice of Objection to Accounts

Limitation Period Not a Sword

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