Court of Appeal for Ontario
Date: 2018-12-13 Docket: C64794
Judges: Juriansz, Brown and Roberts JJ.A.
Between
Orlena Lee, in her capacity as Estate Trustee for the Estate of Shui Yee Lee, Deceased Plaintiff (Appellant)
and
Cesar Ponte Defendant (Respondent)
Counsel
Howard Markowitz, for the appellant
Patrick J. Morrissey, for the respondent
Heard: December 7, 2018
On appeal from the judgment of Justice Arthur M. Gans of the Superior Court of Justice, dated November 30, 2017.
Reasons for Decision
[1] The issue on appeal is whether s. 7 of the Limitations Act, 2002, S.O. 2002, c. 24 applies to extend the time within which an estate trustee can bring a claim that the deceased person had before death.
[2] In 2007, the deceased person Shui Lee had loaned the respondent $55,000.00 secured by a promissory note payable on demand or upon the sale of a specified piece of property, whichever occurred first. The trial judge found the limitations period began to run on June 6, 2013 when Shui Lee became aware the property had been sold. The estate trustee of Shui Lee made a demand in May 2015 and then commenced an action on July 17, 2015. The motion judge found the action was statute barred because it was commenced more than two years after June 6, 2013 and dismissed the claim on summary judgment.
[3] On appeal, the appellant submits that s. 7 of the Limitations Act applies to extend the limitation period by six months for the estate trustee's action. Section 7(1) of the Limitations Act provides:
7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
Presumption
(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.
Extension
(3) If the running of a limitation period is postponed or suspended under this section and the period has less than six months to run when the postponement or suspension ends, the period is extended to include the day that is six months after the day on which the postponement or suspension ends.
[4] The appellant submits that this provision should be liberally construed. In Papamonolopoulos v. Toronto (City) Board of Education, [1987] 75 O.R. (2d) 388 (leave to SCC denied), Brooke J.A. said:
I think the provisions of a statute of limitations should be liberally construed in favour of the individual whose right to sue for compensation is in question. Where two interpretations of the statute are possible, reason favours the one which enables the plaintiff to bring his action
[5] The appellant urges that s. 7 should be interpreted to apply when the person having the claim dies before commencing proceedings. He argues that a deceased person is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition. He submits that the same policy concerns for allowing additional time for a litigation guardian to be appointed and take over the management of the affairs of the incapable person apply to an estate trustee. He points out that it takes time for an estate trustee to review the affairs of the deceased, and to obtain probate.
[6] We are not persuaded the motion judge erred by dismissing the claim as statute barred. The grammatical and ordinary sense of the words of s. 7 are simply not elastic enough to apply to a deceased person and to construe an estate trustee to be a litigation guardian.
[7] The appeal must be dismissed. The appellant did not rely on s. 38(3) of the Trustee Act, R.S.O. 1990, c. T. 23, the application of which is preserved by s. 19 of the Limitations Act. We have not considered whether it has some bearing on the issue raised by this appeal. Costs are fixed in the amount of $6,500.00 inclusive.
R.G. Juriansz J.A.
David Brown J.A.
L.B. Roberts J.A.