Shaw v Barber, 2017 ONSC 2155

Shaw, by her Litigation Guardian the Public Guardian and Trustee v. Barber, Executor of the Estate of Barber et al.

[Indexed as: Shaw (Litigation Guardian of) v. Barber Estate]

Ontario Reports Ontario Superior Court of Justice, McNamara R.S.J. April 6, 2017 137 O.R. (3d) 431 | 2017 ONSC 2155

Case Summary

Limitations — Persons under disability — Six-month limitation period for claims for support under Succession Law Reform Act not starting to run when Office of the Public Guardian and Trustee became mentally incapable applicant's statutory guardian of property — Succession Law Reform Act, R.S.O. 1990, c. S.26.

Wills and estates — Dependants' relief — Six-month limitation period for claims for support under Succession Law Reform Act not starting to run when Office of the Public Guardian and Trustee became mentally incapable applicant's statutory guardian of property — Succession Law Reform Act, R.S.O. 1990, c. S.26.

At the time of his death in August 2014, B was living with the applicant. They were not married. By the terms of his will, B appointed his son as executor of his estate and named him as the sole beneficiary. In February 2015, a capacity assessment was conducted on the applicant and the assessor found her to be incapable of managing property. The certificate of incapacity was forwarded to the Office of the Public Guardian and Trustee ("OPGT") shortly afterward. When the OPGT received a copy of the certificate, it became the applicant's guardian of property under s. 16(5) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The OPGT conducted an investigation and in August 2016 as the applicant's litigation guardian brought an application against B's executor for support under the Succession Law Reform Act. The respondent brought a motion for a ruling on whether the application was statute-barred as it was not brought within the six-month limitation period in the Succession Law Reform Act.

Held, the motion should be dismissed.

Under s. 7(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, the limitation period did not run while the applicant was incapable of commencing a proceeding because of a mental condition and was not represented by a litigation guardian in relation to the claim. The OPGT did not become the applicant's litigation guardian when it became her statutory guardian of property and the six-month limitation period did not start to run at that point. Under rule 7.02(1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where a mentally incompetent plaintiff or applicant has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian. However, rule 7.02(1.1) does not dictate when that authority is to be exercised. That occurs once the guardian of property has determined that there is a basis for exercising their authority as litigation guardian. The OPGT could only make that determination in this case after it had investigated the matter.

Statutes referred to

• Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 7(1), 9(2), 19(1) [as am.]
• Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 16 [as am.], (5) [as am.], 31(1)
• Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 58(1), 61(1)

Rules and regulations referred to

• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 7.01(1), 7.02(1), (1.1)(a)

MOTION for a ruling on whether the application was statute-barred.

Counsel: Russel A. Molot, for applicant. Mary Fraser, for respondent/cross-applicant.

MCNAMARA R.S.J.: —

Overview

1Lois Shaw, by her litigation guardian, the Public Guardian and Trustee, has brought an application pursuant to the Succession Law Reform Act, R.S.O. 1990, c. S.26 against Frank Barber, executor of the estate of Frank Cyril Barber and Frank Barber personally. In the context of that application, the applicant and respondent seek a ruling from this court on whether the application is statute-barred.

Background Facts Relevant to the Issue

2The late Frank Cyril Barber died in August of 2014. At that time, he was residing with the applicant Lois Shaw. They were not married.

3On or about January 16, 2014, a lawyer had taken instructions from the late Mr. Barber to prepare a will. It was executed on January 24, 2014. By the terms of that will, the deceased appointed his son Frank Barber as executor and trustee and named him as the sole beneficiary of his estate.

4As indicated, the deceased passed away in August of 2014. His son applied for a certificate of appointment of estate trustee with a will which was granted on February 5, 2015.

5On February 16, 2015, at the request of the deceased's sister-in-law, a capacity assessment was conducted on Lois Shaw pursuant to s. 16 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The assessor, Dr. Tellier, found she was incapable of managing property. She was found to be suffering from "longstanding cognitive limitations secondary to a developmental condition/delay".

6A copy of that report was sent to the Office of the Public Guardian and Trustee ("OPGT") on or about February 25, 2015. The OPGT commenced an investigation subsequent to the receipt of the assessor's report.

7The matter was referred to counsel at the OPGT in September of 2015, and the investigation then continued under counsel's direction.

8Outside counsel was formally retained by the OPGT to bring the within application in May of 2016, and the claim was in fact issued on August 5, 2016.

Position of the Respondent Barber (Applicant on this Motion)

9It is the position of the respondent Barber that when the certificate of incapacity was issued by the assessor and forwarded to the OPGT on or about February 25, 2015, the OPGT became Ms. Shaw's statutory guardian of property pursuant to s. 16(5) of the Substitute Decisions Act. They submit further that as a guardian of property, the OPGT, pursuant to s. 31(1) of the Substitute Decisions Act, had the power to do on Ms. Shaw's behalf anything in respect of property that Ms. Shaw could do if capable, except make a will. That included commencing an application for support under s. 58(1) of the Succession Law Reform Act.

10In their submission, clothed with that power to advance a claim on Ms. Shaw's behalf, the six-month limitation period for applications called for in s. 61(1) of the Succession Law Reform Act began to run.

11It is their position that the subject application was not brought until August of 2016, well beyond six months after the OPGT received the certificate of incapacity and became Ms. Shaw's statutory guardian of property.

Position of the Applicant (Respondent on this Motion)

12The position of the OPGT on behalf of Ms. Shaw is that their statutory appointment as guardians of property does not automatically make the OPGT a litigation guardian. The decision whether to exercise that potential authority requires an investigation as to whether or not there is a legal basis to advance a claim. They submit there is no provision in any Act, Regulation or Rule which automatically appoints them litigation guardian.

Discussion

13There is no issue as between counsel that the certificate of incapacity to manage property was issued by the assessor, Dr. Tellier, on February 25, 2015 and was forwarded and received by the OPGT shortly after that date. There also is no issue that pursuant to s. 16(5) of the Substitute Decisions Act, once the OPGT received a copy of that certificate they became Ms. Shaw's guardian of property. The parties also agree that as the guardian of property the OPGT had power to do on the incapable person's behalf anything in respect of property that the person could do if capable (s. 31(1) of the Act). Where they disagree completely is when the six-month limitation period for a claim for support under s. 61(1) of the Succession Law Reform Act begins to run.

14The first point that needs to be made is that under the Limitations Act the six-month limitation period under the Succession Law Reform Act is incorporated into the act by s. 19(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. That section provides that any limitation period set out in or under another Act applies as long as the provision establishing it is listed in the schedule to the Limitations Act. There is no issue that this particular limitation period is in that schedule.

15It is also common ground that the limitation period in question does not run in the circumstances set forth in s. 7(1) of the Limitations Act. That section 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.

16The six-month limitation, then, did not run while Ms. Shaw was incapable of commencing a proceeding because of a mental condition and was not represented by a litigation guardian in relation to the claim (emphasis added).

17The estate argues that after its appointment as Ms. Shaw's statutory guardian of property the OPGT had the authority to act as litigation guardian and were then under an obligation to advance a claim within a six-month period of their appointment.

18That argument, in my view, is flawed.

19There is no mechanism in the Limitations Act for the self-appointment of a litigation guardian. To do that, regard must be had to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A number of provisions are relevant.

20First is rule 7.01(1), which provides as follows:

7.01(1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.

A proceeding, then, which includes an application, must be commenced on behalf of a party under a disability by a litigation guardian.

21Next, rule 7.02(1) and (1.1)(a), which provide:

7.02(1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1).

Mentally Incapable Person or Absentee

(1.1) Unless the court orders otherwise, where a plaintiff or applicant,

(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian[.]

22It is important to note that while the above section directs that the guardian shall act as litigation guardian, it does not dictate when that authority is to be exercised. That, in my view, occurs once the guardian of property has determined there is a basis for exercising their authority as litigation guardian.

23Surely that is appropriate. As the affidavit of counsel at the Office of the Public Guardian and Trustee discloses, once they are appointed statutory guardian of property in a factual situation such as existed here, they begin an investigation into the entire matter. That can be, as the affidavit discloses, a time-consuming process because there are usually information gaps because of the client's incapacity which require the OPGT to be reliant on third party information with a need to be verified. The initial investigation is done by a client representative and if the situation warrants it, the matter is then referred to counsel in the OPGT's office which in this case occurred in October of 2015. According to the evidence, further investigation continued under counsel's direction exploring options available. Outside counsel was formally retained by the OPGT on May 6, 2016. The application was brought in August.

24Moving carefully and cautiously prior to commencing litigation at public expense would require a thorough investigation of the facts and legal options available. As counsel in his affidavit points out, the client they act for has little capacity to properly advise them of her circumstances, so they have to rely on third party information which may support or not support or be neutral towards the incapable person's position. I agree with counsel that imposing a limitation period commencing as of the OPGT's appointment as guardian of property is not only contrary the wording of the Limitations Act, but would also create impossible timelines thus creating the potential for injustice being done to vulnerable individuals.

25It is important to remember in all this that the respondent was not in any way prejudiced by delay. While there is no provision in the Limitations Act for self-appointment, there is provision in s. 9(2) for a potential defendant to take steps to have a litigation guardian appointed. That section provides as follows:

9(2) If the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.

26The defendant in this case was aware that the OPGT was looking into its options vis-à-vis a claim against the estate from shortly after its appointment as statutory guardian. The defendants were at liberty in those circumstances to bring an application under s. 9(2) and had they been successful, a litigation guardian would have been appointed for Ms. Shaw.

Conclusion

27For the reasons outlined above, the motion is dismissed.

Costs

28There were no submissions as to costs. If a party is pursuing costs, brief written submissions (two pages) may be submitted for consideration by the court.