Limitation periods are an important part of the law, telling potential parties to an issue how long they have to make a claim, or conversely when they might be free from a claim. However, there are a lot of laws, and there are situations where the limitation period of one law conflicts with the limitation period set out in another. This was the case in a recent decision by the Ontario Superior Court of Justice, giving us a great opportunity to see what happens when two limitation periods are in play.

The facts

The husband and wife were involved in a common-law relationship for a number of years. They resided in a home owned by the wife. She passed away on July 2, 2015. Under the terms of her will, the husband was granted permission to remain in the home for two years following her death.

Two years came and went, at which time the wife’s children sought to sell the home, asking the husband to move out. In response, the husband commenced an application against the Estate on September 25, 2017. In the application, he sought to be awarded a constructive trust equal to one-half of the value of the home. The matter ended up before the court after the estate asked for the application to be dismissed.

What does the Trustee Act say?

The estate’s trustee turned to Section 38 of the Trustee Act, which states that a two-year limitation period for actions against executors and administrators for torts begins to run from “the date of death regardless of when the injuries occurred or matured into an actionable wrong.” This means that even if a potential claimant only finds out about their ability to make a claim one year after the death occurs, the clock would still have been clicking from the date of death.

What does the Real Property Limitations Act say?

The husband obviously didn’t agree that the Trustee Act should determine the limitation period in play. Instead, he turned to the Real Property Limitations Act, which states, “No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next at 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 distress, or to bring such action, first accrued to the person making or bringing it.”

The question before the court, then, was whether the limitation period was two years or ten years.

Determining which limitation period to use

Fortunately, common law has provided us with some guidance on how to handle conflicting limitation periods. A 2014 decision from the Ontario Court of Appeal states, “A claim for constructive trust as a remedy for unjust enrichment is a claim for a right to the land.” As a result of this, the court found that the Real Property Limitations Act was the appropriate act to turn to.

Contact the experienced estate litigation lawyers at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. Contact us online or at 416-481-5604 to book a consultation today.

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