Ontario Court of appeal resolves conflicting limitation periods between the Trustee Act and Limitations Act, 2002

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​In Levesque v. Crampton Estate, 2017 ONCA 455, the Court of Appeal for Ontario resolved that theTrustee Act supersedes the Limitations Act2002 when both limitation periods apply. Because section 38(3) of the Trustee Act is set out in the Schedule to the Limitations Act, 2002 it prevails in the event of a conflict.

This case concerned a crossclaim by a tortfeasor against the estate of a deceased wrongdoer for contribution and indemnity. The estate brought a motion to dismiss the crossclaim under section 38(3) of the Trustee Act. Section 38(3) establishes an absolute limitation period of two-years starting from the death of the wrongdoer. Conversely, the respondent asserts that the limitation period set out by section 19(1) of the Limitations Act, 2002 applies. Under this Act, the two-year limitation period begins at the time of discovery – when the wrongdoer is served with the plaintiff’s claim.

The Court of Appeal found that both limitation periods apply. The Trustee Act amends the common law, providing a right to bring an action against the estate of a deceased person. The Limitations Act, 2002applies because the estate takes the place of the deceased. The Court disagreed with the appellant’s argument that section 18(1) of the Limitations Act, 2002 would apply to claims against a tortfeasor but not those against the estate of a tortfeasor.

Although the respondent expressed concern over potential injustice because, under this interpretation, a crossclaim could expire before the defendant has been sued; this conclusion is consistent with policy and the legislative history of the acts.  The two-year time limit under the Trustee Act,commencing at the time of death, is intended to provide a remedy without creating “indefinite vulnerability for the estate”. Furthermore, Section 19(1) of the Limitations Act, 2002 applies unless the provision from another act establishing a limitation period is set out in the Schedule. By expressly listing this provision in the Schedule, the Legislature demonstrated a clear intention favouring the hard two-year period set by theTrustee Act in the context of estate matters.