Limitation periods play an important role in estate administration and are a critical piece of what trustees must keep in mind when caring for a person or looking after an estate. A recent case decided by the Ontario Superior Court of Justice looked at an interesting question around when the clock starts ticking on limitation periods for someone who is incapacitated and without a litigation guardian.

The car accident

The plaintiff was involved in a serious motor vehicle accident on January 3, 2009. He was the driver of one of the vehicles in the accident and suffered catastrophic brain injuries as a result. The action to seek damages from the driver of the other vehicle as well as the country the accident took place in did not commence until September 11, 2017. The plaintiff alleged the County failed in its duty to maintain the standard required of it under Ontario’s Municipal Act.

While the plaintiff’s litigation with the driver of the other car involved in the accident was resolved in 2014, the Country was not involved until 2017.

The limitation period

The limitation period under Ontario’s Limitations Act normally requires an action to be commenced within two years of the discoverability of the action. However, if read literally, it allows for an indefinite delay in the event that the plaintiff is incapable of commencing an action and is not represented by a litigation guardian. The County brought a number of motions, including one to discover whether the plaintiff had been appointed a litigation guardian earlier. They also sought discovery of files from the original litigation against the other driver.

The County’s main motion, seeking to find out if a litigation guardian or de facto litigation guardian had been appointed came about because they wanted to know if any of the releases signed in the earlier litigation barred the rights or recovery of indemnity in the trial at hand.

In 2012 a litigation guardian was appointed, but he did not put the County on notice. Rather, he spent time investigating whether an action could and should be commenced.

Unfortunately, the court was not able to determine when the clock started ticking on the limitation period, noting that files from the previous litigation would be needed to determine the answer to that question. The court wrote,

“The County is entitled to explore the question of whether or not (the plaintiff’s) capacity was considered in the original litigation or whether he was represented by a de facto litigation guardian. The County is also entitled to know if releases were signed which restrict the rights of any of the current litigants.  The County is certainly entitled to request any evidence relating to the present claims which was preserved in the earlier litigation.”

The experienced estate lawyers at NULaw provide executors, trustees, and attorneys with fulsome advice on their responsibilities and obligations, and will help them mitigate any legal risks and liabilities, so that they are protected and the best interests of the beneficiaries and estate are maintained. Contact us online or at 416-481-5604 for a consultation.


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