SUPERIOR COURT OF JUSTICE (ONTARIO)

CITATION: Raymond Levesque Jr., Dianne Gagnon and Derek Levesque v. The Estate of Father Dale Crampton, the Roman Catholic Corporation of the Episcopal Archdiocese of Ottawa, 2016 ONSC 6809

DATE: 2016-10-31

COURT FILE NO.: 13-58458

REGISTRY: Ottawa, Ontario

RE: RAYMOND LEVESQUE JR., DIANNE GAGNON AND DEREK LEVESQUE

v.

THE ESTATE OF FATHER DALE CRAMPTON AND THE ROMAN CATHOLIC CORPORATION OF THE EPISCOPAL ARCHDIOCESE OF OTTAWA

COUNSEL: WILLIAM J. SAMMON, for the Defendant, the Estate of Father Dale Crampton, Moving Party

HEATHER WILLIAMS, for the Defendant the Roman Catholic Corporation of the Episcopal Archdiocese of Ottawa, Respondent on the Motion

NO ONE APPEARING for the Plaintiffs

Heard at: Ottawa, Ontario

On: May 19, 2016

Before: The Honourable Mr. Justice James

ENDORSEMENT

James, J.:

1. The plaintiff alleges he was sexually assaulted by the defendant, Father Dale Crampton, in about 1976 when he was 12 years old. The defendant, Father Dale Crampton, died in 2010.

2. In 2013 the plaintiff commenced this action against the Crampton Estate and the Roman Catholic Corporation of the Episcopal Archdiocese of Ottawa (the “Archdiocese”).

3. In 2014 the Archdiocese issued a statement of defence and crossclaim against the Crampton Estate.

4. Section 38(2) of the Trustee Act provides that if a deceased person is liable for a wrong to another person, the person wronged may maintain an action against the executor or administrator of the person who is liable for the wrong. Section 38(3) of the Trustee Act says an action for compensation for a wrong committed by a deceased person must be commenced within two years of the wrongdoer’s death.

5. In 2015 the plaintiff agreed to an order dismissing his claim against the Crampton estate because of the limitation period contained in the Trustee Act.

6. Section 18 of the Limitations Act, 2002 governs claims for contribution and indemnity by one wrongdoer against another and provides that the day the first wrongdoer was served with the claim is deemed to be the day the act or omission on which that wrongdoer’s claim is based took place.

Issue

7. In an action against an estate for the wrongdoing of the deceased person, where there are multiple defendants, does the Trustee Act limitation that bars the plaintiff’s claim against the estate after two years also operate to prevent crossclaims against the estate for contribution and indemnity that are made more than two years after the death of the alleged wrongdoer?

Position of the Crampton Estate

8. The estate says that the crossclaim of the Archdiocese is caught by the Trustee Act limitation provision. The crossclaim must fail for the same reason the plaintiff could not maintain his action against the estate. The estate notes correctly that the Trustee Act limitation is not subject to the usual rule respecting discoverability (see Bikur Cholim Jewish Volunteer Services v. Langston, 2009 ONCA 196, [2009] O.J. No. 841 at para. 24). The fact that the Trustee Act limitation period is not subject to discoverability is due to an important underlying policy consideration, that is, the two year window makes a remedy available for a limited time without creating indefinite fiscal vulnerability for the estate (see comments of Abella J.A. in Waschkowski v. Hopkinson Estate (2000) 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 at para. 9).

9. The estate says the limitation period in the Trustee Act trumps s. 18 of the Limitations Act, 2002. It would be anomalous for the plaintiff not to be able to pursue the estate for his claims while at the same time a co-defendant could claim contribution and indemnity from the same party.

Position of the Archdiocese

10. The Archdiocese says s. 18 is intended to provide a consistent and broadly applied limitation period in the case of claims for contribution and indemnity. In support of its position, the Archdiocese notes that the Law Reform Commission in 1988 specifically recommended that a limitation that barred a plaintiff’s claim against one of the defendants should not operate to prevent another defendant from making a crossclaim for contribution and indemnity.

Discussion

11. The situation requires that choices be made between competing policy objectives. It appears to me, however, that the choice has already been made and it is binding on this Court. In Waterloo Region District School Board v. CRD Construction Ltd., 2010, ONCA 838, the Court of Appeal considered a situation where, in 2002, a storm damaged a wall of a gymnasium that was under construction. The plaintiff’s action was not commenced until 2008, long after the expiration of the applicable limitation period in relation to one of the defendants, Truax Engineering Ltd.[1]

12. The question was whether the right to contribution and indemnity in relation to Truax remained available despite the fact that the plaintiff‘s right of action against Truax had proscribed.

13. Feldman J.A. wrote for a 5 member panel at paras. 26 and 29 as follows:

[26] If the court were to conclude that, despite the clear wording of s.18, there is a further limitation period that applies to claims for contribution and indemnity against a concurrent tortfeasor in negligence, and that such claims must also be brought before the expiry of the limitation period applicable to the plaintiff’s claim against the tortfeasor, the effect of a universal limitation period for contribution and indemnity claims in s.18 would be abrogated and the clarity and efficacy of the section undermined…

[29] The effect of the new provision is that the period for bringing the claim for contribution and indemnity now coincides much more closely with the basic limitation for bringing all actions, and procedurally, it is contemplated that all claims arising out of the incident that caused the injury will be tried and disposed of together. Therefore, to the extent that a claim for contribution and indemnity may be brought beyond the limitation period that applied to the plaintiff’s potential claim against a particular tortfeasor, the extension is minimized by the operation of s.18 and any negative consequences to the tortfeasor by being brought into an action after he or she could have been sued by the plaintiff are minimized as well.

14. The point was re-inforced in Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378 with the result that s. 18 trumps other limitation periods that arguably apply. The fact that the Trustee Act limitation is included in the Schedule pursuant to s. 19 of the Limitations Act, 2002 and is exempted from the discoverability principle doesn’t change the situation.

15. The estate relies on the Bikur Cholim case, supra, where this statement appears at para. 26:

…In these circumstances, s. 19(4) is clear. If there is a conflict between a limitation period established by a provision referred to in s. 19(1), such as s. 38(3), and a limitation period established by any other provision of the Limitations Act, 2002, the limitation period established by a provision such as s. 38(3) prevails.

16. The first three words, in these circumstances, are important. This case did not involve a claim by the co-defendant for contribution and indemnity. The motion judge case found no limitation period applied on the particular facts of this case, which involved the transition period following the proclamation in force of the Limitations Act, 2002.

17. Rosenberg J.A. disagreed with the motion judge and concluded that s. 38(3) of the Trustee Act applied without regard to the transition provisions in s. 24 of the Limitations Act, 2002. It was the motion judge’s interpretation that the operation of the transition rules meant that a small number of actions would have no limitation period that attracted the comment by Rosenberg J.A. “that the Legislature could not have intended such an absurd result” (para. 30).

18. If one reads s. 19(1) to relate to one claimant only, there does not appear to be a conflict or inconsistency in the cases or the statutes. The crossclaim is not derivative in the sense urged by the estate. It can have an independent existence. The effect of s. 19(4) is that if the Trustee Act contains a limitation period and the Limitations Act, 2002 contains a different limitation provision, the Trustee Act limitation will prevail in relation to that party. Separate considerations apply to a crossclaiming co-defendant under s. 18. On the facts of this case, the Archdiocese is not affected by of the operation of the limitations period in relation to the plaintiff.

19. Alternatively, if there is a true conflict in the cases, I prefer and adopt the analysis in the later cases of Waterloo and Canaccord that deal specifically with the rights and obligations of co-defendants seeking contribution and indemnity.

20. In the result, the motion is dismissed with costs. On the issue of legal costs, the parties provided costs outlines at the conclusion of the hearing. If the parties are unable to agree on costs, and wish to provide further submissions, they may do so within 30 days on a schedule agreed to by counsel. In the absence of hearing from counsel that costs have been agreed to, a further endorsement will be delivered subsequent to the 30 day period previously referred to.

The Honourable Mr. Justice James

RELEASED: October 31, 2016

1. [1] The situation was complicated by the timing of the loss and the operation of the transition rules under the Limitations Act, 2002. Suffice it to say that the limitations period applicable to the defendant Truax under the Professional Engineering Act had expired, but the limitation in relation to the other defendants had not, by the time the action was commenced. On my reading of the case, the principles enunciated in Waterloo as they apply here are not affected by the fact that the loss in the Waterloo case occurred before the new Limitations Act, 2002 was proclaimed in force and involved the effect of the repeal of s. 8 of the Negligence Act.