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Is a Notice of Objection to Estate Accounts Subject to Limitations?


Armitage v. Salvation Army[1] concerned an attorney under a continuing power of attorney for property. The grantor also appointed her as his estate trustee. After the grantor’s death the attorney brought applications to pass her accounts as attorney under the Substitute Decisions Act, 1992[2] and as estate trustee under the Estates Act.[3] The appellant beneficiary filed notices of objections in both proceedings and argued that the claim for compensation as attorney was statute-barred and that the amounts of the claims for compensation were excessive. The application judge granted both applications for the passing of accounts and approved the amounts claimed by the respondent as compensation. The Ontario Court of Appeal dismissed the beneficiary’s appeal, though, with respect to the limitation issue, on a different ground than that applied by the application judge. The Court of Appeal held that an application by an attorney to pass her accounts as attorney is not subject to the two-year limitation period of s. 4 of the Limitations Act, 2002.[4] Although the judgment on this point was limited to the application by the respondent as attorney, semble the same principle applies to an application by an estate trustee. As the court held, the Act limits civil “claims” after the specified limitation period and defines a “claim” (in a circular fashion) as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.[5] The court held that an application to pass one’s accounts is not a “claim”. However, in dictum the court made the following statement in a footnote:[6]

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 the beneficiary of a Notice of Objection after an attorney has sought 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.

The issue concerning a notice of objection arose and was addressed in Wall Estate.[7] The endorsement of Mulligan J. begins:

1 The discreet [sic, discrete] issue for consideration at this motion is as follows: Can an estate trustee move to strike a beneficiary’s Notice of Objection to Accounts in the face of the estate trustee’s Application to Pass Accounts, based on the Limitations Act, 2002, or laches or acquiescence? For reasons that follow, I am satisfied that the beneficiary, Elizabeth Wall, is not barred from filing an objection to the accounts for the entire period under administration.

Marjorie Wall died in 2005. Her will divided her estate into two portions and placed them in trust for her two children, Elizabeth and Ted until they attained age 60. If either died before age 60 the corpus of that trust would be added to the other trust. Ted died in 2014 before age 60. The will provided further that if both children died under age 60 the residue of the estate would be divided among Marjorie’s nephews and nieces. Marjorie’s lawyer, Mr. Shaw, was her estate trustee. The will gave him absolute discretion to pay moneys to the two children before they reached age 60 and he did in fact make payments to them over the years.

Mr. Wall held annual meetings with Elizabeth and sometimes Ted. Elizabeth never signed a formal release during any year. They only initialled page 1 of each annual statement. Mr. Shaw never passed his accounts and did not send out annual accounts to the beneficiaries, nor did he give them copies to take away. He also did not arrange for independent legal advice for Elizabeth. Mr. Wall characterized the meetings as accounting, whereas Elizabeth disputed that claim and stated that she was provided only with Excel spreadsheets.

In 2014 Elizabeth brought an application requiring Mr. Wall to pass his accounts since Marjorie’s death. The court ordered a passing of accounts in 2015 and Elizabeth filed a notice of objection to accounts in the same year, as did two contingent beneficiaries. In 2016 Mr. Wall brought a motion to strike Elizabeth’s objections. She brought a motion to remove Mr. Wall as estate trustee and the court granted a consent order removing and replacing him.

In the proceedings Mr. Wall did not dispute his obligation to pass his accounts since Marjorie’s death until his removal, but argued that he was not required to address the objections to the accounts between the date of Marjorie’s death and December 31, 2012, because those objections were barred by the Limitations Act, 2002, or laches, or because Elizabeth acquiesced in the “accounts”.

At first instance Justice Mulligan held, applying Armitage, that just as a passing of accounts does not constitute a claim, neither does a notice of objection. His Honour held further that the doctrine of laches did not apply either and that Elizabeth had not acquiesced inthe annual “statements”. Accordingly, he dismissed the motion to strike.

Mr. Shaw appealed. His appeal was limited to the limitations issue. Such an appeal would lie to the Divisional Court under s. 10(1) of the Estates Act.[8] It is not entirely clear whether the appeal was made to the Court of Appeal in error. However, paragraph 3 of the reasons for judgment state that the Chief Justice of the Superior Court of Justice authorized a panel of three judges of the Court of Appeal to reconstitute themselves as a panel of the Divisional Court to hear the appeal.

Justice Brown, who wrote the judgment with which the other members of the panel concurred, gave an extensive overview of the legislative framework for applications to pass accounts, including s. 49(2)-(4) of the Estates Act and r. 74.18 of the Rules of Civil Procedure.[9] His Honour considered Saraceni v. Saraceni,[10] an Alberta case, which held that limitations statutes apply to statutes governing estate administration. He distinguished that case on the facts and because it involved a different statutory regime that applies limitations legislation to estate administration.

Justice Brown held that a notice of objection is not the equivalent of a counterclaim to an existing proceeding so as to constitute a claim, for r. 1.03(1) of the Rules of Civil Procedure defines “proceeding” as an action or an application and the definitions of “action” and “application” do not include a notice of objection made under r. 74.18(7), whereas a counterclaim does fall under the definition of “action”. Consequently, a notice of objection does not commence a proceeding.

That effectively decided the issue. However, because of argument presented by Mr. Shaw, the court went on to consider the effect of Armitage and in particular the footnote to that case quoted above. Justice Brown agreed with Justice Mulligan’s logic that if an 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 a beneficiary makes in that application. He further held while the notice of objection effectively seeks a reduction of interim compensation[11] this does not amount to a claim or a remedy. His Honour noted that interim taking is permissible only: (1) with the agreement of all persons with an interest (if they are sui juris); (2) if approved by the court; or (3) if the will permits it. An estate trustee who takes interim compensation outside those three situations, may be held liable for breach of trust and may be ordered to repay what has been taken. His Honour then drew the following conclusion on this point:

45 Whether a notice of objection to accounts constitutes a “claim” should not depend on the pre-taking of compensation. A notice of objection serves the same procedural function whether or not compensation has been pre-taken — it notifies the judge inquiring into the accounts of objections for which the estate trustee must provide explanations. The effect of a court accepting an objection to the estate trustee’s compensation is also the same in both circumstances — a reduction in the estate trustee’s approved compensation payable by the estate.

Justice Brown then noted that the policy and practical implications of making a notice of objection subject to the two-year limitation period of the Limitations Act, 2002 also mean that the argument to make it subject to the period cannot succeed. He said, referring to Armitage, that an application to pass accounts is not the same as a lis between two parties. Rather, it amounts to a judicial “inquiry” into what has taken place in an estate This is a very helpful and, with respect, correct statement, for a passing of accounts is simply one aspect of the court’s probate jurisdiction, which is inquisitorial in nature.[12] An action between two parties will result in favour of a judgment in favour of one. In contrast, as provided in s. 49(3) of the Estates Act, a judge who presides over a passing of accounts “may order the estate trustee to pay money by way of damages or otherwise … to the estate or trust fund” and the form of the judgment prescribed by r. 74.18(14) does not make provision for a personal judgment in favour of a objecting beneficiary. He further concluded that interpreting s. 4 of the Limitations Act as applying to notices of objection to accounts “would risk insulating an estate trustee’s management of an estate from effective scrutiny. Just as an estate trustee can apply to pass the estate accounts that go back more than two years before the application, a beneficiary should have the right to object to such accounts. Otherwise an estate trustee who wants to avoid scrutiny of certain accounts could simply wait until the two-year period has expired before passing the accounts. Moreover, it might force beneficiaries to argue that they only learnt of their “claim” within the two-year period, or bring annual applications to compel a passing of accounts.

Justice Brown concluded by holding that Mr. Shaw should be personally liable for the costs, because he acted unreasonably and in his own self-interest in bringing the motion to strike the notice of objection.

[1]    2016 ONCA 971, 23 E.T.R. (4th) 1.

[2]    S.O. 1992, c. 30 [SDA], s. 42.

[3]    R.S.O. 1990, c. E.21, s. 49, and see Trustee Act, R.S.O. 1990, c. T.23, s. 61.

[4]    S.O. 2002, c. 24, Sched. B.

[5]    Ibid., s. 1.

[6]    Armitage, supra footnote 1, para. 29.

[7]    2018 ONSC 1735, 38 E.T.R. (4th) 38, affirmed sub nom. Wall v. Shaw, 2018 ONCA 929,

[8]    Supra, footnote 3.

[9]    In his review, his Honour cited, inter alia, Ian M. Hull and Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016), p. 505; and Brian A. Schnurr, Estate Litigation, loose-leaf 2018-Rel. 6), 2nd ed. (Toronto: Thomson Reuters, 1994), ch. 5.2.

[10]   2013 ABCA 354,

[11]   The reasons for judgment speak of “pre-taking” of compensation which, with respect, is a meaningless statement. You can’t take something before taking it. I submit that “interim taking” is a clearer and more correct term.

[12]   See, e.g. Otis v. Otis (2004), 7 E.T.R. (3d) 221, 2004 CarswellOnt1643 (S.C.J.), paras. 23-24, per Cullity J.

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