Court of Appeal for Ontario

CITATION: Kenzie v. Kenzie, 2011 ONCA 53

DATE: 20110120

DOCKET: C52590

BEFORE: Laskin, Feldman and Lang JJ.A.

BETWEEN

Ian Kenzie

Applicant (Appellant)

and

Joan Marjorie Kenzie, Stephen Agar Kenzie and Wendy Michael

Respondents (Respondents)

COUNSEL:

Simon J. Adler and Derek Johnson, for the appellant

Daved Muttart, for the respondent, Joan Marjorie Kenzie

No one appearing for the respondent, Stephen Agar Kenzie

HEARD: January 18, 2011

On appeal from the order of Justice Susan E. Healey of the Superior Court of Justice, dated August 5, 2010.

APPEAL BOOK ENDORSEMENT

[1] The appellant argues that he is entitled to declaratory relief, and that under s. 16(1)(a) of the Limitations Act, there is no limitation period barring his application. We do not agree with the appellant’s argument.

[2] Implicit, if not explicit, in the appellant’s application is his intent to seek a finding or findings that would be res judicata in other proceedings. In our view, that is consequential relief, which takes the appellant’s application out of s. 16(1)(a) of the Limitations Act. Therefore, we agree with the application judge that this application as framed on this record is statute barred.

[3] If the appellant has any viable claim – and we make no determination whether he does or does not – it is by an application for an order that the respondent pass the accounts.

[4] The respondent concedes that the appellant is entitled for an order for the passing of accounts. Whether the Limitations Act bars any claim in the different context of a passing of accounts is an issue to be decided by the judge on the passing of those accounts.

[5] The appeal is dismissed, with costs in the agreed-upon amount of $11,000, inclusive of disbursements and all applicable taxes.