This cheat sheet is intended as a quick reference guide for estate litigators dealing with limitation periods. For a comprehensive review of this topic I refer the reader to articles written by senior members of the bar1 listed in the end notes.
Generally2, a limitation period sets a red line which a claimant can no longer advance a claim. One reason limitation periods are considered desirable is that bringing disputes to trial sooner enables the parties to present the best evidence. Delays in adjudication may be difficult as memories fades, witnesses die and evidence is lost. Moreover, finality of outstanding issues brings certainty which is desirable both for business and those people collaterally involved with any dispute.
These are the key statues dealing with limitation periods in the context of estate litigation. For ease of reference I have listed them here with hyper link access to them on line.
- Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”);
- Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”);
- Family Law Act, R.S.O. 1990, c. F.3 (“FLA”);
- Real Property Limitations Act, RSO 1990, c. L.15 (“RPLA”);
- Estates Act, R.S.O. 1990, c. E.21;
- Estates Administration Act, R.S.O. 1990, c. E.22; and
- Trustee Act, R.S.O. 1990, c. T.23
A key date to keep in mind is January 1, 2004. This is the date the Limitations Act 2002 came into force and a dividing line that determines which limitation period if any applies. If discovery of the cause of action took place prior January 1, 2004 the old applicable limitation period applies or there may be no limitation period at all.3 If the cause of action was discovered after December 31, 2003 then the limitation period set out in the Limitations Act 2002 and applicable legislation applies4.
Under the Limitations Act, 2002 there is a two year limitation period from discovery of the cause of action and an ultimate limitation period of 15 years from the date the cause of action arose even if the cause of action was not discovered5. Discoverability is a key issue in the context of a discussion of limitation periods, but is beyond the scope of this reference guide. I refer the reader to the relevant provision cited in the endnote6 and to the papers listed in the first end note for a fuller treatment of the issue.
The last caveat before proceeding to the chart outlining relevant limitation periods is that when determining a relevant limitation period counsel should consider whether equitable and common law doctrines of special circumstances, laches and fraudulent concealment may result in the stay or extension of limitation periods. Please see the articles listed in endnote i for a full discussion of these doctrines.
In the section that follows I have set out the most prevalent limitation periods that arise in estates and trusts law.
|Cause of Action||Limitation Period||Statute and case law|
Arguably 2 years from the date of death, subject to discoverability principle.
Although there has been debate on this subject, the most recent pronouncement in Leibel v. Leibel strongly suggests that the Limitations Act, 2002 applies to will challenges. In Leibel, the challenger commenced his application 2 years after both (a) the testatrix had died, and (b) he had received a copy of the will. Greer J. held that the action was out of time.7
Breach of Fiduciary Duty
Limitations Act, 2002, Boyce v. Toronto Police Services Board 2012 ONCA 230 (“Boyce”), leave to appeal dismissed stands for the proposition that the Limitations Act 2002 applies breach of fiduciary duty.
Fraud, misrepresentation and breach of fiduciary duty.
Limitations Act, 2002; Portuguese Canadian C.U. v. Piress & Hipel Estate, Re 2011 CarswellOnt 9000, 2011 ONSC 5259, 70 E.T.R. (3d) 149, 207 A.C.W.S. (3d) 179, 108 O.R. (3d) 220 stands for proposition that the Limitations Act limitation period applies.
Application to compel an accounting
|Arguably 2 years|
Jacques v. The Canada Trust Company, 2011 O.N.S.C. 5259, CanLII8.
Application to pass accounts / Claim for compensation by attorney for property under section 40 of the Substitute Decisions Act or by trustee under section 23 of the Trustee Act
No limitation period for the attorney’s claim for compensation, but the equitable doctrines of laches and acquiescence apply.
In the ordinary course the attorney/estate trustee commences an application to pass accounts and if the beneficiary has objections s/he files a notice of objection. In Wall Estate,9 the applicant did not dispute his obligation to provide an accounting. He argued that given the limitation period he was not obliged to respond to the objections. On the facts specific to that case, the Court found that the notice of objection to accounts filed by a beneficiary was not a “claim” within the meaning of the Limitations Act, 2002. In other words, there was no limitation period associated with it.
Armitage v. Salvation Army, 2016 ONCA 971 10; Wall Estate, 2018 ONSC 1735,/p>
6 months from grant of certificate of appointment– no application for support under Part V of SLRA may be made after months from probate11
Section 61(1) Succession Law Reform Act, R.S.O. 1990, c. S.26
Exception to six month limitation period. The court may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
Section 61(2) Succession Law Reform Act, R.S.O. 1990, c. S.26
The Estate of Blanca Esther Robinson stands for the proposition that rectification claims are subject to the Limitations Act 2002.12
for land claims 10 year limitation period
McConnell v. Huxtable stands for the proposition that section 4 of the RPLA did apply to the facts of this case because as it was a claim to recover lands.
No limitation period For non-land claims as long as trustee is alive
In McConnell v. Huxtable Perkins J. concluded sections 4 and 5 of the Limitations Act, 2002 does not apply to constructive trust claims in family law. I presume his logic applies to estate claims as well.
2 years from the death of the trustee or of the plaintiff.
Section 38 of the Trustee Act
Negligence of the Trustee
2 years from discovery or 15 years from the negligent acts, whichever is first.
The Limitations Act 2002
Negligence of the Trustee
2 years from the death of the trustee or the beneficiary.
Section 38 of the Trustee Act
Negligence claim against drafting solicitor
2 years from discovery 15 years from date of the Will.13
The 2002 Limitations Act.
Negligence claim against drafting solicitor
2 years from the death of the trustee or of the plaintiff.
Section 38 of the Trustee Act
Family Law Act Election14
Six months to make Election15– The surviving spouse’s election must be filed in the office of the Estate Registrar for Ontario within six months after the first spouse’s death.
Section 6(10) Family Law Act, R.S.O. 1990, c. F.3
Family Law Act Election
Six months/2 years/6 years to make Application – Part of the process to elect a division of net family property is an application. It has to be brought the earlier of 2 years after the marriage is terminate by divorce, six years after separation and there is no reasonable prospect of cohabitation or six months after the first spouses death.
Section 7(3) Family Law Act, R.S.O. 1990, c. F.3
Family Law Act Election
Distribution Restricted – 6 months. No distribution within six months of the spouse’s death, without written consent of surviving spouse or court order.
Section 6(14) Family Law Act, R.S.O. 1990, c. F.3
Actions against executors and administrators for torts. Except in cases of libel and slander.
|2 years from Deceased’s death.|
See sections 38(2 &(3)Trustee Act, R.S.O. 1990, c. T.23
Vesting of real estate
3 years from Date of death
Section 9(1) & 17(5) of Estates Administration Act R.S.O. 1990, CHAPTER E.22
- I have found a number of articles very useful which I believe are worthwhile to review. There are listed in order of most recently published:
- “Limitation Periods in Estate and Trust Litigation” an article presented by Michael W. Kerr and Kimberly Whaley at the Step Canada 15th National conference June 10-11, 2013.
- “Limitation Periods in estate Litigation” presented by Archie Rabinowitz at the September 13, 2012 LSUC lectures Practice Gems: The Administration of Estates 2012.
- “Limitations and Claims by Beneficiaries” presented by Anne Werker’s at the LSUC’s 10th Annual Estate and Trusts Summit as well as Ms. Werker’s article “Limitations Periods in Ontario and claims by beneficiary published in “The Advocates’ Quarterly” volume 34, Number 1 February 2008,
- “Understanding Limitation Periods” by Justin W. De Vries found in the Probater, Volume 10, Number 4, August 2006,
- “Limitations Periods in Estate Matters” by Brian A. Schnurr found in Schnurr Estate Litigation, 2nd Ed.
- “Limitations Act 2002: A huge reform of existing law” an article written by Graeme Mew of Gowling Lafleur Henderson LLP. He has also authored a text The Law of Limitations, 2nd Edition dealing with statutory and common law rules governing limitation periods. Chapter 16 deals with Estate matters.
- There are some limitation period set out in this short paper that are not red lines and the statute provides the court with discretion to extend those limitation period. For example, under the Succession Law Reform the statute provides that the court may extend the 6 month limitation period. A similar provision is set out in the Family Law Act. ↵
- For example, if a sexual assaults takes places before January 1, 2004 there is no limitation period. ↵
- For some quick reference guides and transition Charts. Please see
- http://www.practicepro.ca/practice/pdf/TransitionRulesChart.pdf This chart was prepared by Pat Peloso and Jennifer Arrigo, both of Gowling Lafleur Henderson LLP. It was adapted from a chart that originally appeared in the materials distributed on June 11, 2003, at the Law Society of Ontario/Ontario Bar Association’s ontinuing Legal EducationProgramme entitled “The Limitations Act, 2002: Learn the New Rules before Time Runs Out”,
- http://www.practicepro.ca/practice/pdf/LimitationsChartComparison2005.pdf : This table examines how limitation and notice periods under the new Limitations Act, 2002,differ from those in effect under previous legislation. It has been compiled by Tony Antoniou, articling student with LAWPRO, based on a table of commonlyencountered limitation and notice periods originally prepared for LAWPRO by Graeme Mew of Gowling Lafleur Henderson LLP. This new table also has been reviewed by Mr. Mew.
- pages 57 & 58 of “Limitations and Claims by Beneficiaries” presented by Anne Werker’s at the LSUC’s 10th Annual Estate and Trusts Summit as well as Ms. Werker’s article “Limitations Periods in Ontario and claims by beneficiary published in “The Advocates’ Quarterly” volume 34, Number 1 February 2008
- There are exceptions to this rule. For example in Giroux Estate v. Trillium Health Centre the Ontario Court of Appeal applied the doctrine of fraudulent concealment to stay the running of the limitation period. For a short review of this doctrine see page 21 of Ms Whaley and Mr. Kerr’s article listed in endnote i. ↵
- section 5 of the Limitation Periods Act
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2)
- Prior to the most recent case law referred to in the chart, senior counsel suggested that based on section 16(1)(a) it was arguable that a will challenge is essentially a declaration with no consequential relief and is therefore not subject to any limitation period. For a review of this issue see page 26 of Anne Werker’s article and page 20 of Archie Rabinowitz’s article listed in endnote 1. Their argument was consistent with the approach in Oestreich v. Burnnhuber, (2001) CarswellOnt 273 (S.C.J.) at para.17 regarding the then Limitations Act. There the Court said that the Act did not relate to the declaring of a will to be valid or invalid, pointing out that the beneficiary who delays in attacking the will runs the risk that the assets may have already been distributed. In her decision quoted in the chart Greer J. mentions, but does not distinguish Oestreich. Perhaps it was not fully argued at trial. In fact, there is Court of Appeal authority on this point.
In Kenzie v. Kenzie, 2010 ONSC 4360 (S.C.), the deceased’s son brought an application for directions under Rule 75.06 relating to the validity of his father’s will. The date of death was 2004; the application was 2010. Healey J. dismissed the application as being out of time under the Limitations Act, 2002. At the Court of Appeal, the son argued that he was only seeking declaratory relief under s. 16(1)(a) of the Limitations Act, 2002. The Court of Appeal held per curiam:
(1) The appellant argues that he is entitled to declaratory relief, and that under s. 16(1)(a) of the Limitations Act, there is no limitation period barring his application. We do not agree with the appellant’s argument.
(2) Implicit, if not explicit, in the appellant’s application is his intent to seek a finding or findings that would be res judicata in other proceedings. In our view, that is consequential relief, which takes the appellant’s application out of s. 16(1)(a) of the Limitations Act. Therefore, we agree with the application judge that this application as framed on this record is statute barred.
There is an interesting discussion of what constitutes declaratory relief and consequential relief in Middlesex Condo Corp. No. 643 v. Prosperity Homes Ltd., 2014 ONSC 1406 (S.C.) at paras. 50-54.
The suggestion made in this blog is that solicitors should treat the obligation to compel a passing of accounts as falling within the two-year limitation period. This suggestion is out of an abundance of caution. It’s generally accepted that there is
- no mandatory legal requirement to pass accounts;
- no legislative direction about the timing for a passing of accounts.
According to Justin De Vries, a respected senior counsel whose practice is restricted to estate litigation, “the one situation where there may be some onus on the beneficiary to demand that an executor pass his or her accounts immediately is when the executor dies without having passed his/her accounts… once estate accounts have been prepared, it seems reasonable that the beneficiaries have two years in which to make a claim for damages..” Kimberly Whaley, a respected certified specialist in estates and trusts law noted that “In the decision in Syndicate Number 963 (Crowe) v. Acuret Underwriter Inc., 2009 CanLII 51195 (ONSC) it was accepted that the 2 year limitation period under the Limitations Act 2002, applied to an action arising out of a failure to account for trust funds. This is important when looking at estate accountings.” In another article Ms. Whaley writes, “The new basic two-year limitation period suggests it may even be prudent to ensure applications to compel accounts be brought within that time.” In other words, it seems as if that when there is a triggering event like the death of an executor or possibly his incapacity of an executor or a demand for a passing that has not been complied with logic suggests that the two year limitation period ought to have started running.
To the best of my knowledge there is no case that definitively answers the question about whether the two year limitation period set in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B applies to an application to compel a passing of accounts. Even if a court were to determine that section 16(1) of the Act applies because an application to have an executor/power of attorney pass their accounts is “a declaration where no consequential relief is sought”, it does not make sense for the obligation to account to exist in perpetuity. Whether it is the two year period set out under the legislation or another time frame only the litigation of the issue will determine. In Hipel Estate, Re 2011 CarswellOnt 9000, 2011 ONSC 5259, 70 E.T.R. (3d) 149 at paragraph 38 the court accepted the proposition that while there is both a statutory and common law obligation to keep records for some period of time, the common law does not impose that obligation in perpetuity. In this case the estate trustee could not be faulted for not having kept records for 27 years. In my view, it logically follows that not having to keep records means not having to account because how can one be expected to account without the vouchers necessary to do the accounting. The open question is how long is too long? For some more detailed dealings with this issue I refer the reader to Kimberly Whaley’s article, “Fiduciary Accounts And Court Passings” which can be accessed on line at http://whaleyestatelitigation.com/resources/WEL_Passing_of_Fiduciary_Accounts_Revised_Feb_2012.pdf and Justin De Vries’ blog at http://www.devrieslitigation.com/resources/passing_of_accounts.html. See also endnote 9 (regarding Armitage v. Salvation Army, 2016 ONCA 971 and the limitation period applicable to an application to pass accounts (as contrasted to an application to compel an attorney or trustee to account). ↵
- According to Wall Estate, 2018 ONSC 1735, this determination is fact-specific. If the passing of accounts does not constitute a “claim” as contemplated by the Limitations Act, 2002, then the Notice of Objection to Accounts is not a claim and not subject to the two year limitation period. A factor that may be taken into account by the courts in making this determination is whether the objector stands to gain immediately from the objection, or whether the objection will only result in a contingent benefit to the objector if successful. In the latter scenario, it has been held that the Notice of Objection did not rise to the level of a “claim”.
Application of the doctrines of laches and/or acquiescence in the context of a Notice of Objection is also fact specific. It has been held that an estate trustee may not strike a beneficiary’s Notice of Objection on the basis of these principles where the estate trustee did not follow best practices i.e. obtain formal releases from the beneficiaries or pass accounts each year. ↵
Armitage v. Salvation Army, 2016 ONCA 971 dealt with an application by an attorney for property for a claim for compensation from the estate of the deceased grantor. The beneficiary of the estate (the Salvation Army) resisted the attorney’s claim for compensation on a limitations argument, on the basis that the attorney had not claimed annual compensation as provided for by section 40(1) of the Substitute Decisions Act, 1992. It argued that each year of the attorney’s service triggered the beginning of a two-year limitation period for the attorney to claim compensation, and that because the attorney had not claimed compensation until nearly two years following the death of the grantor, a large portion of the compensation claimed was statute-barred.
At paragraph 27 of the decision, the Ontario Court of Appeal stated as follows:
…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 the accounts…
The court went on to hold, further, that an application for the passing of accounts does not arise as the result of an “action or omission”, as required by the Limitations Act, 2002. The court held that for these reasons, a passing of accounts under theSubstitute Decisions Act, 1992 is not subject to the two-year limitations period found in the Limitations Act, 2002, and it went on to hold that the enactment of the Limitations Act, 2002 did not change the common law in that regard. Therefore, the only defences available are the equitable defences of laches and acquiescence, neither of which had been asserted in the case. In a footnote to paragraph 29 of the decision, W. Hourigan J.A., writing for a unanimous court, made the following commentary:
I do not mean to categorically provide that the Limitations Act, 2002 has no applicability to the passing of accounts process under the SDA. In particular, it may be that the filing by a beneficiary of a notice of objection after an attorney has sought a passing of accounts is a claim within the meaning of the Limitations Act, 2002. However, I leave this determination to another case where it arises directly on the facts.
While the above holding in Armitage was restricted to an application to pass of accounts by an attorney for property (there being no limitation issue arising, on the facts, from the claim for estate trustee compensation), the reasoning of the Ontario Court of Appeal would apply equally to claims for compensation under section 23 of the Trustee Act. ↵
- Estate Trustees who distribute prior to the expiry of the six month limitation period may be held personally liable. See Re Dentinger 1981, 10 E.T.R. 6 (Ont. Surr. Ct.). ↵
- See section 4 of the Limitations Act,2002. Claim may be barred by the doctrine of laches. ↵
- The limitation periods are suspended if the disappointed beneficiary is subject to a disability. ↵
- Pursuant to the Family Law Act R.S.O. 1990, c.F3, the surviving spouse may choose not to take under the Will (or under the laws of intestacy as the case may be) and instead choose to elect for an equalization of net family property (“NFP”). ↵
- The FLA permits an extension of the limitation period under certain circumstances. See section 6(16) ↵