Evaluating whether a limitation period may apply2 to prevent a party from pursuing their claim involves a two-stage analysis. First, the court must determine when a claim was “discovered”.3 Second the court will determine whether the applicant/plaintiff commenced a “proceeding” within the required time period.
Most limitation period cases tend to focus on the first stage of the analysis and, in particular, when the claim was in fact discovered. In the context of will challenges, the general rule is that a will speaks from the date of death and, as such, any proceeding must be taken within two years of the date of death,4 barring any discoverability issues.5
The second stage of the analysis is typically more straightforward, because it simply requires the court to determine if an action/application was commenced within two years of the discovery date of the claim.
However, unique procedural elements of will-challenges claims raise some interesting considerations.
Typically, in civil litigation, the method to initiate proceedings is either by way of issuing an “originating process”6 in the form of a statement of claim or a notice of application. Having a statement of claim or notice of application “issued” generally involves paying an issuance fee to the court and having your document stamped by court staff.
In contrast, will-challenges often involve preliminary procedural steps, such as filing a document called a notice of objection with the court, which has the effect of preventing another party from obtaining a certificate of appointment (probate) without taking certain additional steps on notice to the party who filed the notice of objection. This raises the interesting question as to whether these preliminary steps qualify as commencing a “proceeding” such that they preserve the limitation period.
This was the issue before Justice Gilmore in Bristol v. Bristol.7
In this case, the deceased died on December 6, 2016. Less than a month later, on December 30, 2016, the applicant filed a notice of objection (together with a notice of appearance) to the issuance of a certificate of appointment of estate trustee with a will. The applicant did not, however, commence an actual application to challenge the will until June 6, 2019, which was more than two years after the date of death of the deceased.
The respondent argued that the applicant’s notice of application was statute barred, because it was not commenced within the two year time limit prescribed by the Limitations Act. The respondent, therefore, brought a motion to dismiss the notice of application and the notice of objection that had been filed by the applicant.
The applicant, in turn, argued that her notice of objection and accompanying notice of appearance constituted a “proceeding”, which was filed within the limitation period.
After briefly reviewing the issues of discoverability, Justice Gilmore’s decision focused on whether the applicant had commenced a “proceeding” within the two year limitation period.
Justice Gilmore’s analysis starts with reference to Rule 1.03, which defines a “proceeding” as “an action or application”. Her Honour then went on to explain why none of the steps taken by the applicant prior to issuing the notice of application qualified as commencing a “proceeding” as defined by the Rules of Civil Procedure, and accordingly, the applicant’s proceeding was statute barred pursuant to the Limitations Act.
Specifically, Justice Gilmore found that with respect to:
- The Notice of Appearance, this is a required filing intended to preserve the status of the Notice of Objection filed, not to create a new proceeding; and
- The Notice of Objection, citing Re McDevitt, her Honour found that a notice of objection is properly characterized as a caution or caveat, but does not constitute a proceeding. The notice of objection is a warning of an intention to commence a proceeding, but nothing more.
Accordingly, while filing a notice of objection is typically an important first step in challenging a will, it is imperative that lawyers and clients appreciate that it will not act to preserve any limitation periods.
- Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B . ↵
- The nature of the remedy sought is also important. Thus section 16(1)(a) the Limitations Act 2002 provides that there is no time bar where only declaratory relief is sought. See Piekut v. Romoli, 2020 ONCA 26 (Ont. C.A.). Readers may also be interested in the Limitation Period Cheat Sheet found at https://www.wagnersidlofsky.com/limitation-period-cheat-sheet ↵
- Section 5 of the Limitations Act, 2002, S.O. 2002, c. 24, states that the “discovery” of a claim is determined as afollows:
5 (1) A claim is discovered on the earlier of,
(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). ↵
- Leibel v. Leibel, 2014 ONSC 4516 at para. 36 (Ont. S.C.J.). ↵
- Shannon v. Hrabovsky, 2018 ONSC 6593 at paras. 64, 67 (Ont. S.C.J.). ↵
- See the Rules of Civil Procedure, R.R.O. 1990, Reg 194, s.1(1). ↵
- Bristol v. Bristol, 2020 CarswellOnt 3976 (Ont. S.C.J.) ↵