Introduction
Limitation periods are a fundamental component of the legal system. They promote the timely commencement of litigation and protect defendants from claims based on events that occurred in the distant past. They also serve an important evidentiary function by ensuring that allegations are supported by reliable proof. With the passage of time, documents may be lost or destroyed, physical evidence may deteriorate, and witnesses may forget or pass away.
In the estate’s context, limitation periods are less than straightforward. This is generally, attributable to two phenomena. First, from a historical perspective equitable claims were not governed by limitation statutes. Secondly, in the contemporary legislative landscape, estate-related limitation periods are scattered throughout multiple statutes. Further, as we will be explained below, there are many estate-based limitation periods which do not follow the basic period established by the Limitations Act, 2002.[1] This article aims to provide some clarity with respect to estate-based exceptions to the basic limitation periods.
Limitation Periods – The Basics
Pursuant to section 4 of the Limitations Act, 2002, Ontario has a standing basic 2-year limitation period subject to the doctrine of discoverability:
- Unless 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. 2002, c. 24, Sched. B, s. 4. [emphasis added][2]
Discoverability, as articulated by section 5 of the Limitations Act, 2002, codifies a common law principle that,
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).[3]
Exclusions and Exceptions
With respect to estate practitioners, while section 4 of the Limitations Act, 2022[4] establishes the basic 2-year limitation period for all claims, there are codified exceptions listed in section 2 and set out by Schedule 19.
Section 2 of the Act states:
Application
- (1) This Act applies to claims pursued in court proceedings other than,
a) proceedings to which the Real Property Limitations Act applies;
b) proceedings in the nature of an appeal, if the time for commencing them is governed by an Act or rule of the court;
c) proceedings under the Judicial Review Procedure Act;
d) proceedings to which the Provincial Offences Act applies;
e) proceedings based on the existing aboriginal and treaty rights of the aboriginal peoples of Canada which are recognized and affirmed in section 35 of the Constitution Act, 1982; and
f) proceedings based on equitable claims by aboriginal peoples against the Crown. 2002, c. 24, Sched. B, s. 2 (1).
Section 2 – the Real Property Limitations Act
Insofar as estate-based limitation periods are concerned, the Real Property Limitations Act[5] stands out given it governs all limitation periods affecting land. The connection being land frequently forms a significant portion of a deceased’s estate. Further, the limitation period applicable to a claim for recovery of a legacy (including a share of residue) or a devise is also contained in the RPLA, not the Limitations Act, 2002.[6]
The RPLA provides for a 10-year limitation period which starts at the time the claimant has a vested interest in possession of the legacy (or devise) and not with discovery.[7]
Notwithstanding the above, the recent case of Ingram v Kulynych Estate,[8] considered whether the 10-year limitation period in the RPLA, or the 2-year period pursuant to section 38(3) of the Trustee Act[9] applied to equitable trust claims against an estate. The respondent, claiming to have been in a common law relationship with the deceased, sought a constructive trust via unjust enrichment four years after death. The lower court had applied the 10-year RPLA limitation, citing McConnell v Huxtable.[10]
Ultimately, the Court of Appeal overturned the trial level decision, holding that the specific 2-year limitation period under section 38(3) of the Trustee Act governs such claims against estates. The Appellate court distinguished McConnell, which applied the RPLA limitation period of 10-years to a claim for constructive trust, by noting that McConnell involved an inter vivos trust whereas the case at bar did not.[11] The court underscored that the RPLA does not govern equitable claims against estates, and in cases of apparent conflict, the specific statutory limitation for estate matters in the Trustee Act overrides the more general RPLA period.
The RPLA also deviates from the standard limitation period prescribed by the Limitations Act, 2002, for the recovery of interest on a legacy, as per section 17.[12] Confirmed by the Ontario Court of Appeal in Chadwick v Buchanan[13] a legatee has 6 years from the date that the interest became due to commence a claim for recovery.[14]
The 10-year limitation period under the RPLA does not apply to an intestate share of an estate.[15] The 2-year limitation period from the date of discovery under the Limitations Act, 2002, would apply in that circumstance.
Exceptions Listed by Schedule 19
As mentioned above, exceptions to the basic 2-year limitation period prescribed by the Limitations Act, 2002, are set out in section 2 and Schedule 19. To facilitate greater visibility of the estate-related limitation periods contained in Schedule 19, we extracted the relevant provisions and generated a brief table below:
| Statute & Section(s) |
Limitation Period |
| Estates Act, ss. 44(2), 45(2) and 47[16] |
SS. 44 & 45 – Where an estate trustee has notice that claim or demand has been made against the estate, the estate trustee may serve a Notice of Contestation of the Claim. The claimant has 30 days to apply to a judge of the Superior Court of Justice for an order allowing their claim.
S 47 – Provides that the limitation period prescribed by s 38(3) of the Trustee Act will not apply where notice of a claim is provided to the estate trustee at any time prior to the date upon which the claim would be barred by the Trustee Act. |
| Estates Administration Act, s 17(5)[17] |
S 17(5) – Allows the court to make an order for the distribution of an estate, within 3 years from the date of death, upon application by the personal representative or any beneficially entitled party. |
| Family Law Act, s 7(3)[18] |
S 7(3) – Requires that applications for equalization of NFP be brought before the court within 6 months after the first spouse’s death. |
| Succession Law Reform Act, s 61[19] |
S 61 – Dictates that applications for dependant support claims must be made within 6 months of the certificate of appointment of Estate Trustee having been granted. |
| Trustee Act, s 38(3)[20] |
S 38(3) – Holds that personal claims by or against estate trustees, or estate administrators must be brought within 2 years from the date of death. |
Equitable Claims
Historically, equitable claims, those claims in law that originated from the courts of Equity, which are governed by principles of fairness and generally seek discretionary remedies other than damages, have had a significant overlap with estate proceedings. In terms of equitable claims and their limitation periods, prior to the Limitations Act, 2002, many equitable claims were not subject to a statutory limitation period, but instead they were regulated to the equitable doctrines of laches and acquiescence.
Now, based on the cases below, it appears that most equitable claims are covered under the new Limitations Act, 2002. We will review some of the most relevant estate-related equitable claims.
Constructive Trust (and Other Non-Express Trust) Claims
As touched on above, McConnell stands for the proposition that constructive trust claims against inter vivos transfers of land are governed by the RPLA. Conversely, as per Kulynych Estate, where section 38(3) of the Trustee Act is implicated, said legislation governing claims against estates overrides the general 10-year limitation period in section 4 of the RPLA.
Equitable Fraud – Breach of Fiduciary Duty and Misrepresentation
Equitable Fraud, which is sort-of catchall term for certain kinds of unconscionable or misleading conduct (i.e. undue influence/ misrepresentation as a fiduciary), is subject to the standard 2-year limitation period. However, according with the principles of discoverability, if the fraud concealed the cause of action, the running of the limitation period may be postponed until the plaintiff discovers the wrongdoing.[21]
In specific regard to breach of fiduciary duty, following the enactment of the Limitations Act, 2002, a 2-year limitation period applies, running from the date the claim is discovered.[22]
Rectification
Rectification is generally subject to section 4 of the Limitations Act, 2002, as this section, notwithstanding the above, is generally applied to will challenges and equitable claims. The Ontario Court of Appeal in, Alguire v. The Manufacturers Life Insurance Company (Manulife Financial) held that the limitation period for rectification begins to run when the applicant knows or ought to know that injury, loss, or damage has occurred, which may not be until the other party resiles from the common understanding reflected in the will or instrument.[23]
Quantum Meruit
In Ontario, the leading authority for quantum meruit period limitation periods come from the Court of Appeal decision of, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, which clarifies that the limitation period applicable to quantum meruit is the general 2-year limitation period under the Limitations Act, 2002.[24]
Concluding Comments
The foregoing illustrates how limitation periods, especially in the estate’s context, are far from uniform. Various statutes carve out exceptions to the basic regime established by the Limitations Act, 2002. While this article highlights some of the key provisions most relevant to practitioners, it only scratches the surface of a complex area of law. Further commentary and case law will continue to shape how these limitation periods are interpreted and applied, and much more remains to be said.
—
[1] Limitations Act, 2002 c.24, Sch. B at section 4. (the “Limitations Act, 2002” or the “Act”)
[2] Ibid.
[3] Limitations Act, 2002 c.24, Sch. B at section 5.
[4] Limitations Act, 2002 c.24, Sch. B at section 4.
[5] Real Property Limitations Act, R.S.O. 1990, c. L.15. (“RPLA“)
[6] RPLA, at section 4.
[7] See Anne Werker, “Limitation Periods in Ontario and Claims by Beneficiaries” (2008) 34:1 Advocates’ Quarterly, at p.4 (“Werker“).
[8] Ingram v. Kulynych Estate, 2024 ONCA 678 (CanLII). (“Kulynych Estate”)
[9] Trustee Act, RSO 1990, c T.23 at section 38(3). (“Trustee Act”)
[10] McConnell v. Huxtable, 2014 ONCA 86 (CanLII). (“McConnell”)
[11] Kulynych Estate, at paras 15 and 65.
[12] RPLA, at section 17.
[13] Chadwick v Buchanan, 1938 CarswellOnt 191; [1938] 3 D.L.R 753; also see Falconbridge on Mortgages, 5th Ed. § 30:5.
[14] RPLA, supra note 5 at section17.
[15] Werker, supra note 7 at p.13.
[16] Estates Act, R.S.O. 1990, c. E.21 at ss 44(2), 45(2), and 47. (“Estates Act”)
[17] Estates Administration Act, R.S.O. 1990, c. E.22 at section 17(5). (“Estates Administration Act”)
[18] Family Law Act, R.S.O. 1990, c. F.3 at section 7(3). (“Family Law Act”)
[19] Succession Law Reform Act, R.S.O. 1990, c. S.26 at section 61. (“SLRA”)
[20] Trustee Act, RSO 1990, c T.23at section 38(3). (“Trustee Act”)
[21] Goodfellow v. Tordjman, 2016 ONSC 3888, 2016 CarswellOnt 9869 at paras 31-33; Massie & Renwick, Limited v. Underwriters’ Survey Bureau Ltd. et al., 1940 CanLII 1 (SCC), [1940] SCR 218 at para 83.
[22] Total Meter Services Inc. v. GVM Integration, 2025 ONCA 321, 2025 CarswellOnt 6300 at para 35.
[23] Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 202 (CanLII) at paras 30-34.
[24] The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272 (CanLII) see paras 73 & 81.
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Written by: Grant Swedak
Posted on: October 1, 2025
Categories: Commentary, WEL Newsletter
Introduction
Limitation periods are a fundamental component of the legal system. They promote the timely commencement of litigation and protect defendants from claims based on events that occurred in the distant past. They also serve an important evidentiary function by ensuring that allegations are supported by reliable proof. With the passage of time, documents may be lost or destroyed, physical evidence may deteriorate, and witnesses may forget or pass away.
In the estate’s context, limitation periods are less than straightforward. This is generally, attributable to two phenomena. First, from a historical perspective equitable claims were not governed by limitation statutes. Secondly, in the contemporary legislative landscape, estate-related limitation periods are scattered throughout multiple statutes. Further, as we will be explained below, there are many estate-based limitation periods which do not follow the basic period established by the Limitations Act, 2002.[1] This article aims to provide some clarity with respect to estate-based exceptions to the basic limitation periods.
Limitation Periods – The Basics
Pursuant to section 4 of the Limitations Act, 2002, Ontario has a standing basic 2-year limitation period subject to the doctrine of discoverability:
Discoverability, as articulated by section 5 of the Limitations Act, 2002, codifies a common law principle that,
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).[3]
Exclusions and Exceptions
With respect to estate practitioners, while section 4 of the Limitations Act, 2022[4] establishes the basic 2-year limitation period for all claims, there are codified exceptions listed in section 2 and set out by Schedule 19.
Section 2 of the Act states:
Application
a) proceedings to which the Real Property Limitations Act applies;
b) proceedings in the nature of an appeal, if the time for commencing them is governed by an Act or rule of the court;
c) proceedings under the Judicial Review Procedure Act;
d) proceedings to which the Provincial Offences Act applies;
e) proceedings based on the existing aboriginal and treaty rights of the aboriginal peoples of Canada which are recognized and affirmed in section 35 of the Constitution Act, 1982; and
f) proceedings based on equitable claims by aboriginal peoples against the Crown. 2002, c. 24, Sched. B, s. 2 (1).
Section 2 – the Real Property Limitations Act
Insofar as estate-based limitation periods are concerned, the Real Property Limitations Act[5] stands out given it governs all limitation periods affecting land. The connection being land frequently forms a significant portion of a deceased’s estate. Further, the limitation period applicable to a claim for recovery of a legacy (including a share of residue) or a devise is also contained in the RPLA, not the Limitations Act, 2002.[6]
The RPLA provides for a 10-year limitation period which starts at the time the claimant has a vested interest in possession of the legacy (or devise) and not with discovery.[7]
Notwithstanding the above, the recent case of Ingram v Kulynych Estate,[8] considered whether the 10-year limitation period in the RPLA, or the 2-year period pursuant to section 38(3) of the Trustee Act[9] applied to equitable trust claims against an estate. The respondent, claiming to have been in a common law relationship with the deceased, sought a constructive trust via unjust enrichment four years after death. The lower court had applied the 10-year RPLA limitation, citing McConnell v Huxtable.[10]
Ultimately, the Court of Appeal overturned the trial level decision, holding that the specific 2-year limitation period under section 38(3) of the Trustee Act governs such claims against estates. The Appellate court distinguished McConnell, which applied the RPLA limitation period of 10-years to a claim for constructive trust, by noting that McConnell involved an inter vivos trust whereas the case at bar did not.[11] The court underscored that the RPLA does not govern equitable claims against estates, and in cases of apparent conflict, the specific statutory limitation for estate matters in the Trustee Act overrides the more general RPLA period.
The RPLA also deviates from the standard limitation period prescribed by the Limitations Act, 2002, for the recovery of interest on a legacy, as per section 17.[12] Confirmed by the Ontario Court of Appeal in Chadwick v Buchanan[13] a legatee has 6 years from the date that the interest became due to commence a claim for recovery.[14]
The 10-year limitation period under the RPLA does not apply to an intestate share of an estate.[15] The 2-year limitation period from the date of discovery under the Limitations Act, 2002, would apply in that circumstance.
Exceptions Listed by Schedule 19
As mentioned above, exceptions to the basic 2-year limitation period prescribed by the Limitations Act, 2002, are set out in section 2 and Schedule 19. To facilitate greater visibility of the estate-related limitation periods contained in Schedule 19, we extracted the relevant provisions and generated a brief table below:
S 47 – Provides that the limitation period prescribed by s 38(3) of the Trustee Act will not apply where notice of a claim is provided to the estate trustee at any time prior to the date upon which the claim would be barred by the Trustee Act.
Equitable Claims
Historically, equitable claims, those claims in law that originated from the courts of Equity, which are governed by principles of fairness and generally seek discretionary remedies other than damages, have had a significant overlap with estate proceedings. In terms of equitable claims and their limitation periods, prior to the Limitations Act, 2002, many equitable claims were not subject to a statutory limitation period, but instead they were regulated to the equitable doctrines of laches and acquiescence.
Now, based on the cases below, it appears that most equitable claims are covered under the new Limitations Act, 2002. We will review some of the most relevant estate-related equitable claims.
Constructive Trust (and Other Non-Express Trust) Claims
As touched on above, McConnell stands for the proposition that constructive trust claims against inter vivos transfers of land are governed by the RPLA. Conversely, as per Kulynych Estate, where section 38(3) of the Trustee Act is implicated, said legislation governing claims against estates overrides the general 10-year limitation period in section 4 of the RPLA.
Equitable Fraud – Breach of Fiduciary Duty and Misrepresentation
Equitable Fraud, which is sort-of catchall term for certain kinds of unconscionable or misleading conduct (i.e. undue influence/ misrepresentation as a fiduciary), is subject to the standard 2-year limitation period. However, according with the principles of discoverability, if the fraud concealed the cause of action, the running of the limitation period may be postponed until the plaintiff discovers the wrongdoing.[21]
In specific regard to breach of fiduciary duty, following the enactment of the Limitations Act, 2002, a 2-year limitation period applies, running from the date the claim is discovered.[22]
Rectification
Rectification is generally subject to section 4 of the Limitations Act, 2002, as this section, notwithstanding the above, is generally applied to will challenges and equitable claims. The Ontario Court of Appeal in, Alguire v. The Manufacturers Life Insurance Company (Manulife Financial) held that the limitation period for rectification begins to run when the applicant knows or ought to know that injury, loss, or damage has occurred, which may not be until the other party resiles from the common understanding reflected in the will or instrument.[23]
Quantum Meruit
In Ontario, the leading authority for quantum meruit period limitation periods come from the Court of Appeal decision of, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, which clarifies that the limitation period applicable to quantum meruit is the general 2-year limitation period under the Limitations Act, 2002.[24]
Concluding Comments
The foregoing illustrates how limitation periods, especially in the estate’s context, are far from uniform. Various statutes carve out exceptions to the basic regime established by the Limitations Act, 2002. While this article highlights some of the key provisions most relevant to practitioners, it only scratches the surface of a complex area of law. Further commentary and case law will continue to shape how these limitation periods are interpreted and applied, and much more remains to be said.
—
[1] Limitations Act, 2002 c.24, Sch. B at section 4. (the “Limitations Act, 2002” or the “Act”)
[2] Ibid.
[3] Limitations Act, 2002 c.24, Sch. B at section 5.
[4] Limitations Act, 2002 c.24, Sch. B at section 4.
[5] Real Property Limitations Act, R.S.O. 1990, c. L.15. (“RPLA“)
[6] RPLA, at section 4.
[7] See Anne Werker, “Limitation Periods in Ontario and Claims by Beneficiaries” (2008) 34:1 Advocates’ Quarterly, at p.4 (“Werker“).
[8] Ingram v. Kulynych Estate, 2024 ONCA 678 (CanLII). (“Kulynych Estate”)
[9] Trustee Act, RSO 1990, c T.23 at section 38(3). (“Trustee Act”)
[10] McConnell v. Huxtable, 2014 ONCA 86 (CanLII). (“McConnell”)
[11] Kulynych Estate, at paras 15 and 65.
[12] RPLA, at section 17.
[13] Chadwick v Buchanan, 1938 CarswellOnt 191; [1938] 3 D.L.R 753; also see Falconbridge on Mortgages, 5th Ed. § 30:5.
[14] RPLA, supra note 5 at section17.
[15] Werker, supra note 7 at p.13.
[16] Estates Act, R.S.O. 1990, c. E.21 at ss 44(2), 45(2), and 47. (“Estates Act”)
[17] Estates Administration Act, R.S.O. 1990, c. E.22 at section 17(5). (“Estates Administration Act”)
[18] Family Law Act, R.S.O. 1990, c. F.3 at section 7(3). (“Family Law Act”)
[19] Succession Law Reform Act, R.S.O. 1990, c. S.26 at section 61. (“SLRA”)
[20] Trustee Act, RSO 1990, c T.23at section 38(3). (“Trustee Act”)
[21] Goodfellow v. Tordjman, 2016 ONSC 3888, 2016 CarswellOnt 9869 at paras 31-33; Massie & Renwick, Limited v. Underwriters’ Survey Bureau Ltd. et al., 1940 CanLII 1 (SCC), [1940] SCR 218 at para 83.
[22] Total Meter Services Inc. v. GVM Integration, 2025 ONCA 321, 2025 CarswellOnt 6300 at para 35.
[23] Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 202 (CanLII) at paras 30-34.
[24] The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272 (CanLII) see paras 73 & 81.
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