Do the provisions of Ontario’s Limitations Act, 2002 which eliminate or toll a limitation period for sexual assault claims take precedence over the two-year limitation period for actions against an estate, as set out in section 38(3) of the Trustee Act? This question arose in Bangma Estate 2010 ONSC 3614 (CanLII). In that case, the plaintiff made a claim against the estates of her deceased parents for sexual assault, battery, breach of fiduciary duty and negligence. The plaintiff’s father died on January 29, 2004. The plaintiff’s mother died on October 6, 2006. The plaintiff commenced her claim against their respective estates and the potential heirs to their estates on October 1, 2008, which was well after the second anniversary of her father’s death.
The defendants brought a Rule 21 motion on the grounds that the action against the father’s estate was statute-barred. Justice MacLeod-Beliveau dismissed the motion and found that the issue had to be addressed at trial. In so doing, she reviewed statutory interpretation arguments based on the provisions of the Limitations Act, 2002 (including, but not limited to s.16, which holds that there is no limitation period for sexual assault where the defendant was in a fiduciary relationship with the claimant) and the doctrine of “fraudulent concealment”. Justice MacLeod-Beliveau concluded that it was not plain and obvious that none of the various arguments raised by the plaintiff could possibly operate to toll or extend the limitation period set out in the Trustee Act. The defendants brought a motion for leave to appeal. Their motion was dismissed by Justice Beaudoin, who held that there was no reason to doubt the correctness of Justice MacLeod-Beliveau’s decision.
So when will an Estate, finally, be “off the hook” for a potential sexual assault claim? In Waschkowski v. Hopkinson Estate 2000 CanLII 5646 (ON C.A.) the Ontario Court of Appeal recognized that estates should not be subject to “indefinite fiscal vulnerability.” Yet the Supreme Court of Canada has also recognized that sexual assault victims, particularly incest victims, deserve special consideration when it comes to limitation periods: M. (K.) v. M. (H.), 1992 CanLII 31 (S.C.C.). It will be fascinating to see how the courts grapple with these competing policy concerns.
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