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Does Filing a Notice of Objection Preserve One’s Claim in a Will Challenge?

I have written this blog to expand upon the excellent blog of my colleague, Albert Oosterhoff, which considers whether a notice of objection to estate accounts is subject to a limitation period.[1]

As explained by Mr. Oosterhoff, the Divisional Court in Wall v Shaw[2] determined that a notice of objection under the Rules of Civil Procedure filed in respect of an application to pass accounts does not commence a proceeding under section 4 of the Limitations Act, 2002.[3] Moreover, the Divisional Court stated that since a notice of objection under the Rules of Civil Procedure doesn’t commence a proceeding then “it is not necessary to determine whether a notice of objection is a ‘claim’ to which s. 4 [of the Limitations Act, 2002] would otherwise apply.”[4]

Although the decision in Wall Estate pertained to a notice of objection to accounts under rule 74.18(7) of the Rules of Civil Procedure, it could be argued that the statutory interpretation of the Divisional Court be applied to all notices of objection made under the Rules of Civil Procedure. 

Is a notice of objection a proceeding under the Limitations Act?

Section 4 of the Limitations Act states that “[u]nless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”[5]

Since the Limitations Act does not define the term “proceeding”, the Divisional Court in Wall Estate looked to the Rules of Civil Procedure for guidance. In particular, the Divisional Court looked to the definitions of “proceeding” and its constituent terms “action”, “application”, and “originating process” under the Rules of Civil Procedure.[6]

In summary, the Divisional Court explained that the definition of “proceeding” and its constituent terms under Rule 1.03 of the Rules of Civil Procedure specifically exclude the term “notice of objection” but in contrast include other terms such as “counterclaim” (in addition to “crossclaim” and “third party claim” though not noted within the decision).[7] As such, the Divisional Court determined upon a plain reading of the Rules of Civil Procedure that “a notice of objection does not commence a proceeding within the meaning of s. 4 of the Limitations Act”.[8]

Although the analysis of the Divisional Court in Wall Estate pertains to whether a notice of objection to accounts falls within the meaning of section 4 of the Limitations Act, one could adopt the Divisional Court’s legislative interpretation to argue that a notice of objection to issuing a certificate of appointment also falls outside the scope of such provision, as it is also excluded from the definition of “proceeding” and its constituent terms under the Rules of Civil Procedure.

Lastly, it could also be argued that a notice of objection to issuing a certificate of appointment does not fall within the meaning of section 4 of the Limitations Act because it expires three years after it was filed unless withdrawn earlier by the objector or removed by way of court order.[9]

In contrast, a “proceeding” or its constituent terms under the Rules of Civil Procedure are dismissed for delay if a trial is not set down by the fifth anniversary of the commencement of the action in accordance with Rule 48.14. The only exceptions to the dismissal of an action for delay are set out under subrule 48.14(1.1) of the Rules of Civil Procedure, which excludes a notice of objection to issuing a certificate of appointment.

Is a notice of objection a claim under the Limitations Act?

In Wall Estate, the Divisional Court adopted the recent decision of the Court of Appeal in Armitage v The Salvation Army[10] to determine that the filing of a notice of objection to accounts does not constituted a “claim” under the Limitations Act.

In Armitage, the Court of Appeal assessed whether an application by an attorney for property to pass accounts under the Substitute Decisions Act[11] was a “claim” within the meaning of the Limitations Act.

Under the Limitations Act, a “claim” is defined as a “claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”[12]

Ultimately, the Court of Appeal determined in Armitage that since an attorney for property who passes accounts under the SDA is not seeking an “injury, loss or damage that occurred as a result of an act or omission” that such a proceeding is therefore not a “claim” as defined under the Limitations Act, 2002.[13]

In Wall Estate, the Divisional Court adopted the reasons of Armitage by explaining that “there is force to the argument that if the estate trustee’s initial application to pass accounts is not a ‘claim’ within the meaning of the Limitations Act, then neither is a responding objection made by the beneficiary within that proceeding.”[14]

It could also be argued that a notice of objection to issuing a certificate of appointment under subrule 75.03(1) of the Rules of Civil Procedure is not a “claim” within the meaning of section 4 of the Limitations Act, as an objector is not seeking an injury, loss or damage that occurred as a result of an act or omission. Procedurally, an objector files a notice of objection under subrule 75.03(1) of the Rules of Civil Procedure to notify the court not to issue a certificate of appointment to a particular applicant due to a pending will challenge. In order to seek a declaratory remedy that a will is invalid an objector is required to bring a proceeding subsequent to filing a notice of objection to issuing a certificate of appointment to seek a remedy from the court.

As explained by Justice Brown in Armitage, an application to pass accounts is not a “claim” since such an application “is the opposite of remedial”.[15] Thus, one could argue that the same is to be determined with respect to a notice of objection to issuing a certificate of appointment.

Conclusion

In light of the above decisions of the Court of Appeal in Armitage and the Divisional Court in Wall Estate, one could argue that upon a plain reading of the Rules of Civil Procedure that a notice of objection – whether it be filed in respect of an objection to pass accounts or an issuance of a certificate of appointment – does not commence a “proceeding” or a “claim” within the meaning of section 4 of the Limitations Act.

As such, it could be argued that the filing of the notice of objection to issuing a certificate of appointment does not preserve a claim by an objector seeking a declaratory remedy that a will is invalid. We look forward to seeing how the court deals with this issue in the future.

[1] Albert Oosterhoff, Is a Notice of Objection to Estate Accounts Subject to Limitations? (January 15, 2019) http://welpartners.com/blog/2019/01/is-a-notice-of-objection-to-estate-accounts-subject-to-limitations/

[2] Wall v Shaw, 2018 ONCA 929 (“Wall Estate”)

[3] Limitations Act, 2002 (the “Limitations Act”)

[4] Supra note 2 at para 33

[5] Supra note 3 at s 4

[6] Supra note 2 at paras 32 and 33

[7] Ibid at para 32

[8] Ibid at para 33

[9] Rule 75.03(2) of the Rules of Civil Procedure

[10] Armitage v The Salvation Army, 2016 ONCA 971 (“Armitage”)

[11] Substitute Decisions Act, 1992, SO 1992, c 30 (“SDA”)

[12] Supra note 3 at section 1

[13] Supra note 9 at paras 27 and 29

[14] Ibid at para 37

[15] Supra note 10 at para 23

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