Limitation periods

Today's decision in Camarata v. Morgan, 2009 ONCA 38 deals with the interaction between the Trustee Act and the Limitations Act when there are seemingly conflicting limitation periods.

Under the Trustee Act the estate of a deceased has two years to proceed with certain claims. Under the Limitations Act the same deceased had two years to commence a specific action. Here the limitation had expired within the two years the deceased had to proceed but not within two years of death. Does the Trustee Act limitation period extend the Limitations Act period?

No.

The two periods are simultaneous and when the first expires the action is barred. The Court holds:


[8]               Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act.  Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action.  In some circumstances, s. 38(3) will effectively shorten what would otherwise be the applicable limitation period:  see Swain Estate v. Lake of the Woods District Hospital, supra.  Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action. 
James Morton
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