In Gomes v Da Silva, 2024 ONCA 792 (“Gomes”), the Ontario Court of Appeal addressed the importance of bringing a claim for the recovery of real property within the ten-year limitation period set out under section 4 of the Real Property Limitations Act, RSO 1990, c L15 (the “RPLA”).

Background

In 1974, the Da Silva family purchased a house in Toronto.  At that time, the parents, Mr. and Mrs. Da Silva, owned 50% of the house, while one of their children, Victor, owned the other 50%.  Mr. Da Silva died in 1996, following which Mrs. Da Silva and Victor each owned 50% of the house as tenants in common.  In 2012, Mrs. Da Silva decided to transfer her 50% interest in the house to herself and all four of her children: Victor, Eulalia, Nascimento, and Tito (who later passed away).  When Mrs. Da Silva died in 2019, Victor thus became the owner of 62.5% of the house, whereas Eulalia, Nascimento, and Tito’s estate each owned 12.5% of the house.

Following Mrs. Da Silva’s death, the family could not agree on the ownership of the house and what should happen to it.  Eventually, Eulalia, Nascimento, and Tito’s estate brought an application to partition and sell the property under the Partition Act, RSO 1990, c P4.  In response, Victor claimed beneficial ownership of 100% of the house on the basis that he had contributed substantial funds to the original purchase in 1974.  Victor alleged that these funds were a loan, not a gift, to his parents.

When the matter was heard by Justice Vermette, Victor’s claim was dismissed, in part, because it had been brought outside the ten-year limitation period set out under section 4 of the RPLA.  Justice Vermette granted the order for partition and sale.

Appeal

Victor appealed Justice Vermette’s decision to the Ontario Court of Appeal.  The issues on appeal were manifold, though the dispositive issue was whether or not Victor’s claim was statute-barred under the RPLA.

Section 4 of the RPLA provides that “No person shall… bring an action to recover any land… but within ten years next after the time at which the right to… bring such action first accrued to the person bringing it.”  In other words, when an individual wishes to bring a claim to recover real property, the individual must bring the claim within ten years of the date they first discovered the claim.  Section 4 of the RPLA applies to many types of claims relating to real property, including equitable claims based on breach of trust, unjust enrichment, or proprietary estoppel, and claims which seek the imposition of a resulting or constructive trust over real property (in this case, Victor was seeking to impose a resulting trust over the house – for more on the doctrine of resulting trust, see my previous blog here).

In this case, Victor was required to commence his claim for ownership of the house within ten years of the date he first discovered his claim.  According to the Court, Victor first discovered his claim in 2008.  In 2008, Mrs. Da Silva had suggested to Victor that either she should buy out his 50% interest in the house, or that Victor should buy out her 50% interest in the house, or that the house should be sold.  This put Victor on notice that Mrs. Da Silva did not agree with the notion that Victor was the beneficial owner of the entire house.

Because Victor first discovered his claim in 2008, Victor ought to have brought his claim by 2018 at the very latest.  However, Victor’s claim was commenced in 2019.  As such, Victor had brought his claim for ownership of the house one year past the ten-year limitation period.  His appeal was accordingly dismissed.

Takeaway

Gomes serves as an important reminder of the necessity of commencing claims before the expiration of the relevant limitation period.  To learn more about limitation periods in the context of estate litigation, see the following paper written by Justin W. de Vries and Christopher Cook: Navigating Limitation Periods in Estate Litigation.