Court File and Parties
OSHAWA COURT FILE NO.: FC-17-1599
DATE: 20200121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Andrew Wilkinson Applicant
– and –
The Estate of Linda Suzanne Robinson Respondent
Counsel: Murray Maltz, for the Applicant Carmen Defacendis, for the Respondent
HEARD: December 6, 2019
REASONS FOR JUDGMENT
ROWSELL J.:
[1] This matter was argued before me as two motions. One motion was brought by the Respondent (the Estate), and a further motion brought by the Applicant, Robert Andrew Wilkinson (Wilkinson).
[2] The Estate’s motion was to dismiss Wilkinson’s action based on the fact that the relief was commenced after the limitation period set out in the Trustee Act, R.S.O. 1990, c. T.23. Wilkinson’s motion was to add the beneficiaries as parties.
[3] The facts of this matter are simple. Wilkinson and Linda Robinson (Robinson) resided in a common-law relationship for a number of years in a home owned by Robinson. On July 2, 2015, Robinson passed away.
[4] Under the terms of the will, Wilkinson was granted permission to remain in the home for two years after Robinson’s death.
[5] On September 25, 2017, Wilkinson, commenced an application against the Estate wherein the sole prayer for relief is “a declaration constructive trust as to an equal interest in the property municipally known at 1326 Carling Avenue, Oshawa, and costs”.
[6] The Estate’s motion is a summary judgment motion dismissing the application on the grounds that it is statute barred by the operation of s. 38(2) and 38(3) of the Trustee Act.
[7] Robinson left a will, which provided (emphasis my own):
(e) To hold whatever property I may own and be using as a home at the time of my death together with all lands and buildings appurtenant thereto as a home for my common-law spouse, ROBERT WILKINSON, for a period of (2) years following the date of my death or for such shorter period as my common-law spouse desires. The taxes, insurance, repairs mortgage interest and other charges or amounts necessary for the general upkeep of any residential property held under the terms of this paragraph shall be paid by my common-law spouse, failing which the said property shall be sold and the proceeds of sale therefrom shall fall into and form part of the residue of my estate. On the second anniversary of the date of my death, my Trustees shall sell the said property and the proceeds of the sale therefrom shall fall into and form part of the residue of my estate.
(f) To divide the residue of my estate among those children of mine, namely, TYLER SHAWN ROBINSON, LINDSEY DAWN ROBINSON AND JENNIFER LYNNE ROBINSON, living at the date of my death, provided that if any of my said children predecease me leaving issue alive at the date of my death, the issue of such deceased child of mine living at the date of my death shall take in equal shares per stirpes the share to which such deceased child of mine would have been entitled had he or she survived me.
[8] Robinson was residing at Carling Avenue and Wilkinson was living with her. The Estate trustee permitted Wilkinson to occupy Carling Avenue in accordance with the terms of the will. After July 2, 2017, Wilkinson did not vacate the property and has remained in possession.
[9] Wilkinson did not contest the will.
[10] Section 38 of the Trustee Act states:
Actions against executors and administrators for torts
(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.
The Position of the Estate
[11] Paragraph 22 of the Estate’s factum states:
The two-year limitation period under section 38(3) of the Trustee Act, runs from the date of death regardless of when the injuries occurred or matured into an actionable wrong, and s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged. See: Levesque v. Crampton Estate, 2017 ONCA 455; Waschkowski v. Hopkinson Estate, 2000 CanLII 5646
[12] The Estate argues at Paragraph 24 of their factum that this prevails over the limitation period set out in the Limitations Act, 2002, S.O. 2002, c.24, Sched.B in the event of a conflict:
Section 38(3) of the Trustee Act is set out in the Schedule to the Limitations Act, 2002. It, therefore, prevails over a limitation period set out in the Limitations Act, 2002, in the event of a conflict.
• S. 19(4) of the Limitations Act, 2002
19(1) A limitation period set out in or under another Act that applies to a claim to which this Act applies is of no effect unless,
(a) The provision establishing it is listed in the Schedule to this Act; or
(b) The provision establishing it,
(i) Is in existence on January 1, 2004, and
(ii) Incorporates by reference a provision listed in the Schedule to this Act. 2002, c. 24, Sched. B, s. 19(1); 2008, c. 19, Sched. L, s. 3.
See: Levesque v. Crampton Estate, 2017 ONCA 455
[13] The Estate states that there is a public policy argument, and sets out in their factum at paragraph 27:
Limitation statutes reflect public policy about efficiency and fairness in the justice system. They have several goals. They promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts. They reflect a policy that, after a reasonable time, people should be entitled to put their pasts behind them and should not be troubled by the possibility of “stale” claims emerging from the woodwork. They ensure the reliability of evidence. And they promote diligence, because they encourage litigants to pursue claims with reasonable dispatch. See: Levesque v. Crampton Estate, 2017 ONCA 455
Position of Wilkinson
[14] Wilkinson’s position is that the Estate has been unjustly enriched by Wilkinson’s actions in the relationship. As a result, he claims the declaration of a constructive trust as to an equal interest in the property municipally known at 1326 Carling Avenue, Oshawa, and costs.
[15] Wilkinson refers to the Limitations Act at s. 2, and the Real Property Limitations Act, R.S.O. 1990, c. L.15 at s. 1 and s. 4:
Application
2(1) This Act applies to claims pursued in court proceedings other than,
(a) proceedings to which the Real Property Limitations Act applies.
Definitions
1 In this Act,
“action” includes an information on behalf of the Crown and any civil proceeding; (“action”)
“assurance” means a deed or instrument, other than a will, by which land may be conveyed or transferred; (“transfer”)
“land” includes messages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency; (“bien-fonds”)
Limitation where the subject interested
4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next at the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990 c. L.15, s. 4.
[16] Wilkinson refers to the case of McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561 wherein the issue before the Court of Appeal was a claim for constructive trust in a common-law relationship based on unjust enrichment. The Court of Appeal determined that this was an action for recovery of land and is therefore was governed by the Real Property Limitations Act, which has a limitation period of 10 years.
[17] The Court of Appeal stated:
[20] […] A claim for constructive trust as a remedy for unjust enrichment is a claim for a right to the land. I see no inconsistency between s. 15 and the Hartman Estate definition of “recover”. I agree with the motion judge’s resolution of this issue.
[28] […] I see nothing in the Real Property Limitations Act that suggests that the Legislature intended to exhaustively deal with trust cases involving land. To the contrary, the legislative history suggests that the Legislature intended to leave the area largely as it was. Thus, if s. 4 can fairly bear the interpretation of applying to recovery of real property through a constructive trust then I see no reason to impose an artificial and narrow interpretation on the section’s very broad language.
[38] With that background I return to the interpretive issue and specifically to the question of whether an application for the equitable remedy of a constructive trust in real property is an application for recovery of any land. In my view, the respondent is making a claim for recovery of land in the sense that she seeks to obtain land by judgment of the Court. That the court might provide her with the alternative remedy of a monetary award does not take away from the fact that her claim is for a share of the property. The repeated references to constructive trust as a remedy for unjust enrichment in Kerr demonstrate that a proprietary remedy is a viable remedy for unjust enrichment where there is a link or casual connection between her contributions and the acquisition, preservation, maintenance or improvement of the property.
[39] In sum, I agree with the motion judge’s conclusion at para. 80 of his reasons:
From the plain meaning of the words “action to recover any land” in section 4 of the Real Property Limitations Act, in their “entire context” as described above, I find that the applicant’s claim in this case for an ownership interest in the house in question is an “action to recover any land” within the meaning of section 4 of the Real Property Limitations Act. It is subject to a ten year limitation period. Based on the record before me, it is not possible for me to conclude that the applicant’s claim in this case is barred by the ten-year limitation. Accordingly, this part of her claim is entitled to proceed.
[40] I also agree with the motion judge that her alternative claim for a monetary award can shelter under s. 4 for the reasons he gave at para. 88:
My analysis of the question begins with the words of the section: “… bring an action to recover any land …”. In contrast to the Limitations Act, 2002, which deals with individual “claims”, this provision deals with an “action” (extended by section 1 of the Real Property Limitations Act to include “any civil proceeding”). An action or application can and frequently does include a principal claim with an alternative claim, as in this case. Here the damages claim is an alternative or fallback position to the first claim advanced by the applicant, which is for an ownership interest. The statute does not say “action to recover only land”. Further, it would not make sense to interpret section 4 of the Real Property Limitations Act as a sort of all or nothing proposition, forcing the court either to award a proprietary interest on what it finds to be a meritorious claim, when a monetary award would otherwise by an adequate and appropriate remedy, or to award nothing at all, because a shorter limitation period for a damage award bars that kind of remedy. To interpret the section as not protecting an alternative damage award would mean that a claimant would never be able to rely on the section in determining when to launch a court case involving land and would always have to meet the limitation period for a damages claim, for fear of being locked out at the end of the case.
Analysis
[19] The position of the Estate that the Trustee Act is an absolute bar to the constructive trust claim is not borne out by the prior cases or by the legislation. The Estate takes the position that if the parties were alive, the ten-year rule would apply, but since the death of Robinson, the limitation period becomes two years.
[20] While there is no doubt that section 38(3) of the Trustee Act is a hard limitation, there is no jurisprudence to demonstrate that the Real Property Limitations Act should not apply in cases of a constructive trust as has already been determined by the Court of Appeal in McConnell v. Huxtable.
[21] In Rolston v. Rolston, 2016 ONSC 2937, the Court was asked to consider whether the Plaintiff’s claim for constructive trust was barred by the limitation period in s.38(3) of the Trustee Act. The claims were brought some seven years after the date of death. In considering what limitation period would apply to actions for unjust enrichment seeking a remedial constructive trust, Leach J., accepted at paras 58 and 59 that section 38 of the Trustee Act was intended to apply not only to tort actions, but to other “personal” actions. However he went on to note that the Trustee Act was entirely dependent on provisions of the Limitations Act, that the same legislation confirms that it does not apply to claims pursued in proceedings to which the Real Property Limitations Act applies and that as confirmed by the Court of Appeal in McConnell v. Huxtable, claims for unjust enrichment and associated remedies of constructive trust are governed by section 4 of the Real Property Limitations Act.
[22] The heading of the applicable section in the Trustee Act refers to claims in tort. This is not a tort claim. This is an action for an interest in property.
[23] A simple analysis is that the Real Property Limitations Act is dealing with a right to land, not with a wrong against a person. This case, as in McConnell v. Huxtable, deals with a right to property.
[24] I do not propose to differentiate between live parties and deceased parties. The Estate’s motion is therefore dismissed. Wilkinson’s motion is similarly dismissed.
[25] It is not appropriate or necessary to add the beneficiaries as parties at this stage of the litigation. Adding them as parties only complicates and confuses the matter. The property in question is still in the name of the Estate. Given that ownership has not been transferred, it is not appropriate to add the beneficiaries.
[26] The Applicant may file costs submissions in writing within 30 days of the release of this judgment, submissions not to exceed five pages. The Respondent has 20 days to file costs submissions in writing thereafter, not to exceed five pages. The Applicant has 15 days to file any reply, not to exceed three pages.
Justice A.R. Rowsell
Released: January 21, 2020