The Limitations Act, 2002, SO 2002, c 24, Sch B, brought order and clarity to limitation periods in Ontario. However, the Limitations Act did not displace all existing limitation periods established by statute. The Limitations Act carves out several exceptions, including the Real Property Limitations Act, RSO 1990, c L.15 and s. 38(3) of the Trustee Act, RSO 1990, c T.23 (see ss. 2(1)(a) and 19(1) of the Limitation Act).
Section four of the Real Property Limitations Act establishes a 10 year limitation period to pursue claims involving land. In contrast, s. 38(3) of the Trustee Act imposes a strict deadline on third parties to commence a claim against the estate within two years of the deceased’s date of death. When a claim involves land and a deceased person, disagreements over which limitation period applies is almost certain to follow.
This was the case in Wilkinson v. The Estate of Linda Robinson, 2020 ONSC 0091. Mr. Wilkinson and Ms. Robinson were common law spouses. They lived together in Ms. Robinson’s house in Oshawa. Ms. Robinson passed away in 2015. In her will, she gifted Mr. Wilkinson the right to continuing living in her house for the next two years. After that time, the estate trustees were directed to sell the house and distribute the funds to the residual beneficiaries, being Ms. Robinson’s three children.
Mr. Wilkinson did not contest the will. However, when it came time for Mr. Wilkinson to move out of the house in 2017, he refused to leave. Instead, he commenced an application against Ms. Robinson’s estate for a declaration that he held an equal interest in the house by way of constructive trust.
The estate trustee brought a motion to dismiss Mr. Wilkinson’s application on the basis that it was out of time. The estate trustee argued that s. 38 of the Trustee Act applied in this case:
Actions against executors and administrators for torts
(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.
Limitation of actions
(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.
In response, Mr. Wilkinson argued that the appropriate limitation period was s. 4 of the Real Property Limitations Act:
Limitation where the subject interested
No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.
The question looked at by the court was whether the claim for a constructive trust was a claim to land (such that the Real Property Limitation Period applied), or a claim for a wrong against a person (such that the Trustee Act applied).
In reaching its decision, the court cited the Court of Appeal decision in McConnell v. Huxtable, 2014 ONCA 86 (at paragraph 15): “A claim for constructive trust … is a claim for a right to the land.” As a result, the court held that the 10 year limitation period set out in the Real Property Limitations Act applied and Mr. Wilkinson was free to move forward with his application.
Limitation periods are sometimes tricky. But the law is clear in this case – claims for a constructive trust over land are governed by the limitation period set out in the Real Property Limitations Act.