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Does a Person’s Death  Alter Ontario’s 2 Year Limitation Period?

In Lee v Ponte, 2018 ONCA 1021, a recent decision of the Ontario Court of Appeal , the court held that section 7 of the Limitation Act, 2002, S.O. 2002, c. 24 did not apply to a deceased person, nor, could it be interpreted so that an estate trustee be construed as a litigation guardian.

The estate trustee of the deceased person commenced a claim more than 2 years after the date on which the limitation period began to run. On a motion for summary judgment, the motion judge dismissed the claim as statute barred. On appeal, counsel for the estate trustee urged that s. 7 should be liberally construed so as to apply when a person who has a claim dies before commencing proceedings. The argument was made that a deceased person fell within section 7  as a deceased “is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition”. Moreover, the same policy concerns that allow a  litigation guardian additional time to be appointed and take over management of the affairs of an incapable person, should also apply to an estate trustee.

The court was not persuaded and held that section 7 did not apply to a deceased person, nor could an estate trustee be construed as a litigation guardian. As a result, the court held that the appeal was dismissed and the action was statute barred

However, the court did not close the door on the ability of an estate trustee to commence an action beyond the 2-year limitation period from the date of discoverability of a claim arising before death. The decision specifically mentions that “[t]he appellant did not rely on section 38(3) of the Trustee Act, R.S.O. 1990, c.T. 23, the application of which is preserved by s. 19 of the Limitations Act.”  Section 19 and the Schedule to the Limitations Act, together provide that section 38(3) of the Trustee Actprevails over the basic 2-year limitation period. Therefore, read together, the suggestion is that there is a 2-year limitation period from the date of the deceased’s death for an estate trustee to sue for torts or injuries to the person and property of the deceased. If section 38(3) had been relied upon, the court could have reached a different conclusion since the two Acts, read together, provide a 2-year limitation period from the date of the deceased’s death for such claims, rather than the Limitation Period read on its own which reads as 2-years’ from the date of discoverability.

Legislative exceptions to the 2-year basic limitation period ought to be carefully reviewed when considering commencing a claim and/or addressing a summary judgment motion.

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