Passing of Accounts and Limitations
Litigators always have to be aware of limitations in their practice, as limitations affect almost all legal proceedings. But this raises a question: Does the Limitations Act, 2002[1] apply to a passing of accounts? This question was explored in a helpful article in 2016.[2] The Act limits civil claims after a specified limitation period[3] and defines a “claim” as a “claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”[4] The authors approached the question by asking, rightly, in my opinion, whether an application to pass accounts is a claim and concluded that an application by a fiduciary is not a claim, since it does not involve wrongful conduct or damage.[5] They also concluded that an application to compel a fiduciary to pass her accounts is not a claim either, since there is no loss involved.[6] As they say: “A successful application to force a fiduciary to pass accounts may be a means toward a remedial end, but is not itself a remedy that provides consequential relief to a beneficiary.”[7]
In Armitage v. Salvation Army[8] the Ontario Court of Appeal agreed in substance with the authors’ argument, holding that an application by an attorney, who later became the executor of the deceased’s estate, to pass both sets of accounts is not subject to the Act. The court awarded the applicant compensation in his capacities as attorney and as executor. The court also noted that historically in Ontario there was no limitation period for passing of accounts and the Act did not change the common law.
On the other hand, the equitable doctrines of acquiescence and laches can be used to limit an application to compel the passing of accounts.[9] Moreover, the Act does apply to any claim asserted in an application to compel the passing of accounts.[10] Similarly, a notice of objection contains a claim if it seeks a remedy for any loss or damage allegedly caused by the fiduciary and is thus subject to the Act.[11]
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[1] S.O. 2002, c. 24, Sched. B.
[2] Matthew Furrow and Daniel Zacks, “The Limitation of Applications to Pass Accounts” (2016), 46 Adv. Q. 230.
[3] Limitations Act, supra, footnote 1: a basic period of two years, subject to discoverability (ss. 4 and 5), and an ultimate 15-year period (s. 15).
[4] Ibid. s. 1.
[5] Furrow and Zacks, supra, footnote 2, p. 238.
[6] Ibid.
[7] Ibid., p. 239
[8] 2016 ONCA 971, 23 E.T.R. (4th) 1.
[9] See, e.g., Jacques v. Hipel Estate, 2011 ONSC 5259, affirmed 2012 ONCA 371, leave to appeal refused sub nom. Jacques v. Canada Trust Co. 2012 CarswellOnt 15242 (S.C.C.), although in that case the beneficiary brought a claim for damages after a 27-year delay, instead of seeking a passing of accounts.
[10] Furrow and Zacks, supra, footnote 2, p. 244.
[11] Ibid., p. 246.
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Written by: Albert Oosterhoff
Posted on: July 19, 2017
Categories: Commentary
Litigators always have to be aware of limitations in their practice, as limitations affect almost all legal proceedings. But this raises a question: Does the Limitations Act, 2002[1] apply to a passing of accounts? This question was explored in a helpful article in 2016.[2] The Act limits civil claims after a specified limitation period[3] and defines a “claim” as a “claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”[4] The authors approached the question by asking, rightly, in my opinion, whether an application to pass accounts is a claim and concluded that an application by a fiduciary is not a claim, since it does not involve wrongful conduct or damage.[5] They also concluded that an application to compel a fiduciary to pass her accounts is not a claim either, since there is no loss involved.[6] As they say: “A successful application to force a fiduciary to pass accounts may be a means toward a remedial end, but is not itself a remedy that provides consequential relief to a beneficiary.”[7]
In Armitage v. Salvation Army[8] the Ontario Court of Appeal agreed in substance with the authors’ argument, holding that an application by an attorney, who later became the executor of the deceased’s estate, to pass both sets of accounts is not subject to the Act. The court awarded the applicant compensation in his capacities as attorney and as executor. The court also noted that historically in Ontario there was no limitation period for passing of accounts and the Act did not change the common law.
On the other hand, the equitable doctrines of acquiescence and laches can be used to limit an application to compel the passing of accounts.[9] Moreover, the Act does apply to any claim asserted in an application to compel the passing of accounts.[10] Similarly, a notice of objection contains a claim if it seeks a remedy for any loss or damage allegedly caused by the fiduciary and is thus subject to the Act.[11]
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[1] S.O. 2002, c. 24, Sched. B.
[2] Matthew Furrow and Daniel Zacks, “The Limitation of Applications to Pass Accounts” (2016), 46 Adv. Q. 230.
[3] Limitations Act, supra, footnote 1: a basic period of two years, subject to discoverability (ss. 4 and 5), and an ultimate 15-year period (s. 15).
[4] Ibid. s. 1.
[5] Furrow and Zacks, supra, footnote 2, p. 238.
[6] Ibid.
[7] Ibid., p. 239
[8] 2016 ONCA 971, 23 E.T.R. (4th) 1.
[9] See, e.g., Jacques v. Hipel Estate, 2011 ONSC 5259, affirmed 2012 ONCA 371, leave to appeal refused sub nom. Jacques v. Canada Trust Co. 2012 CarswellOnt 15242 (S.C.C.), although in that case the beneficiary brought a claim for damages after a 27-year delay, instead of seeking a passing of accounts.
[10] Furrow and Zacks, supra, footnote 2, p. 244.
[11] Ibid., p. 246.
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