BARRIE COURT FILE NO.: CV-21-366-00 DATE: 20230809 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathleen Ingram, Applicant AND: CHERISE CHARRON, in her capacity as Estate Trustee of the Estate of Henry Harry Kulynych and in her personal capacity to the extent which she has distributed the Estate Assets and ESTATE OF MAURICE ALFRED LOTON, Respondents

BEFORE: The Honourable J. Dawe

COUNSEL: J.M. Gilmore, Counsel, for the Applicant, Kathleen Ingram N.C. Murkar, Counsel, for the Respondent (Moving Party), Cherise Charron S. Lawler, for the Respondent, the Estate of Maurice Alfred Loton

HEARD: In writing

ENDORSEMENT

I. Overview

[1] Henry Kulynych died in February 2017. His will, which he prepared in 1989, left his estate to his wife or, if she died first, to his three children. It also named his wife as his executor, with his daughter Cherise Charron named as the alternate.

[2] Mr. Kulynych’s wife Helen predeceased him. In July 2018 Ms. Charron received a certificate of appointment as the trustee of her father’s estate.

[3] In 2019, Ms. Charron arranged to sell the estate’s principal asset, a house in Ajax. After the transaction closed in March 2019, Ms. Charron distributed the sale proceeds to herself and her two siblings as the beneficiaries under the will. She later distributed most of the remainder of the estate’s assets.

[4] Kathleen Ingram maintains that in 1999 she and Mr. Kulynych began a common law spousal relationship that lasted until his death in 2017. His 1989 will predated their relationship and made no provision for her.

[5] In March 2021, Ms. Ingram commenced an application in which she seeks, among other things, various remedies against Mr. Kulynych’s estate, as well as against Ms. Charron personally. She also seeks remedies against the estate of Maurice Loton, a lawyer who died in 2019. Ms. Ingram maintains that after Mr. Kulynych’s death she retained Mr. Loton to take legal action against Mr. Kulynych’s estate, but that he failed to do so.

[6] In December 2021, I made an interim order on consent addressing various procedural issues that arose out of Ms. Ingram’s application. Among other things, the parties agreed that Ms. Charron could bring a motion before me in writing, “at a time to be agreed upon by counsel”, in which she would seek to have Ms. Ingram’s application against her and her late father’s estate dismissed on the grounds that it is limitations-barred.

[7] This is the motion now before me to decide.

II. Analysis

A. Ms. Ingram’s claims against the estate and Ms. Charron

[8] In her notice of application, Ms. Ingram made two main claims against Mr. Kulynych’s estate. First, she sought dependant’s relief under Part V of the Succession Law Reform Act, R.S.O.1990, c. S.26 (“the SLRA”). Specifically, she sought:

An Order pursuant to s. 58(1) of the Succession Law Reform Act for the proper support of the Applicant (dependant of the Deceased at the time of his death) consisting of interim and permanent lump sum and ongoing periodic support for the Applicant retroactive to the Deceased’s date of death, in an amount sufficient to provide for the reasonable needs of the Applicant’s Dependant's Relief;

[9] Second, Ms. Ingram sought, in the alternative:

An Order that [Ms. Ingram] is entitled to an interest in the Estate by virtue of Constructive Trust and Resulting Trust in relation to all estate assets on the basis of contribution or money’s worth.

[10] In her Notice of Application, Ms. Ingram also makes a third claim against Mr. Kulynych’s estate, arguing that the term of the 1989 will leaving the residue of his estate to his “wife” should be interpreted to apply to any person who was his “wife” at the time of his death. Ms. Ingram maintains that because she and Mr. Kulynych then entered into a common law relationship, she should be understood to have been his “wife” at the time of his death, making her the primary beneficiary under the 1989 will.

[11] Ms. Ingram refers to this third claim in her responding affidavit on Ms. Charron’s motion, but does not address it in her factum.

[12] In relation to Ms. Charron personally, Ms. Ingram’s Notice of Application seeks various forms of procedural relief, including an order that Ms. Charron be removed as the estate trustee. She also seeks an order that Ms. Charron be held:

… personally liable for the debts of the estate, including the claims in this Application, for distributing the Estate of the Deceased while a claim against the Estate was outstanding.

B. Ms. Ingram’s prior notice to the estate

[13] In March 2018, a little more than a year after Mr. Kulynych’s death, Mr. Loton wrote to Ms. Charron, indicating that he was acting for Ms. Ingram, and stating:

While this is a delicate matter, Ms. Ingram has approached our firm to assist her in recovering some of the money that she spent in caring for and providing for your father over the years.

[14] This led to further correspondence between counsel over the next year, in which Mr. Loton took the position that Ms. Ingram should receive one-third of the total value of the estate, and Ms. Charron’s lawyer at the time (not Mr. Murkar), made a settlement proposal for a lesser amount, which Ms. Ingram did not accept.

C. Ms. Charron’s motion to have the claims against her dismissed

[15] Ms. Charron now moves to have Ms. Ingram’s application dismissed against her, both in her capacity as the estate trustee and personally, on the grounds that it is statute-barred.

[16] If her motion is successful, this would leave the Estate of Maurice Loton, Ms. Ingram’s former lawyer, as the sole remaining respondent in Ms. Ingram’s application. Counsel for the Estate of Mr. Loton filed no materials on this motion in writing, and takes no position.

[17] In her factum, Ms. Charron states:

The issue on this motion is whether this Application is statute barred by virtue of s. 61 of the Succession Law Reform Act, R.S.O.1990, c. S.26 and s. 38 of the Trustee Act, R.S.O. 1990, c. T.23. and s. 4 of the Limitations Act, 2002, S.0. 2002 c. 24, Schedule B.

[18] In my view, Ms. Charron’s motion can best be characterized as a motion for judgment under rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

… for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.

[19] I agree that the limitations issues that Ms. Charron raises involve questions of law that can properly be decided on this basis, as opposed to issues of mixed fact and law that would require me to resolve contested issues of fact: see, e.g., Salewski v. Lalonde, 2017 ONCA 515, at para. 45. To the extent that the issues Ms. Charron raises do involve questions of fact, these facts appear to be undisputed.

[20] Rule 21.01(2)(a) provides that “[n]o evidence is admissible on a motion … under clause (1)(a), except with leave of a judge or on consent of the parties”. In this case, both parties have filed motion records that include affidavit evidence, and neither has raised any objection to the admissibility of the evidence adduced by the other side. In these circumstances, I am prepared to infer that both parties are consenting to this evidence being received on the motion under rule 21.01(2)(a).

[21] It is important to emphasize that this is not a motion for summary judgment. The underlying merits of Ms. Ingram’s legal and equitable claims, which do involve contested issues of fact, are not before me to decide, and neither Ms. Ingram’s nor Ms. Charron’s affidavit evidence has been tested by cross-examination.

D. Ms. Ingram’s Part V SLRA claim for dependant support

[22] Ms. Charron’s first argument is that Ms. Ingram’s claim for dependent support under Part V of the SLRA is statute-barred by the limitation period established by s. 61 of the SLRA.

[23] Section 61(1) provides that, subject to the exception in s. 61(2):

…no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.

[24] The exception in subsection 61(2) then states that:

(2) The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

[25] In her affidavit, Ms. Charron states that she was granted a certificate of appointment as trustee of her late father’s estate on July 13, 2018. On March 29, 2019 she sold the Ajax house that was the estate’s principal asset, at which time she received the net sale proceeds of $475,585.10. On April 4 and 5 she distributed this money to herself and her two brothers, with each receiving $158,528.36.

[26] Approximately a year later, in March 2020, Ms. Charron distributed most of the balance of the estate’s money to herself and her siblings, with each receiving $52,102.40.

[27] According to Ms. Charron, once these distributions were made the money that remained in the estate totalled only $1,910.07, and that this was the total amount of undistributed estate assets when Ms. Ingram commenced her application on March 10, 2021. Ms. Charron proceeded to distribute the remaining funds to herself a few months later, in July 2021.

[28] In her responding affidavit, Ms. Ingram suggests that there may have been further estate assets that had not been distributed as March 10, 2021. However, this possibility seems to be entirely conjectural on her part.

[29] Ms. Ingram does not dispute that Ms. Charron received the certificate of appointment on July 13, 2018, and that the six-month window in s. 61(1) of the SLRA accordingly expired on January 13, 2019. It is also undisputed that Ms. Ingram did not commence her application for dependant support under s. 58 of the SLRA until March 10, 2021, more than two years later.

[30] This delay is not fatal to Ms. Ingram’s s. 58 SLRA claim, since she may ask for an order under s. 61(2) extending the six-month s. 61(1) window. However, the time limit can only be extended “as to any portion of the estate remaining undistributed at the date of the application”.

[31] Ms. Charron argues that on the date that Ms. Ingram commenced her application the amount of estate funds that remained undistributed was very small. She notes in her factum:

The court does have the discretion to extend the six month limitation period but only as to whatever portion of the estate remains undistributed at the date of the Application, which in this case is close to nil.

[32] In my view, the flaw in Ms. Charron’s argument is that “close to nil” is not the same as “nil”. In order to have Ms. Ingram’s s. 58 SLRA claim dismissed based on the s. 61 limitation period, Ms. Charron must show that it is entirely statute-barred. However, on Ms. Charron’s own evidence, $1,910.07 of the estate funds remained undistributed as of the date that Ms. Ingram commenced her application. Ms. Ingram is entitled to apply to the court to have the six-month limitation period extended in relation to that money.

[33] I agree that this is probably the most that Ms. Ingram can hope to receive by pursuing her s. 58 SRLA claim. Her belief that the estate may have had further undisclosed assets that had not been distributed on March 10, 2021 seems to be no more than wishful thinking on her part.

[34] However, the prospect that Ms. Ingram’s s. 58 SRLA claim may be too small to be worth pursuing because the cost of doing so would exceed any possible return is not a legal basis for dismissing her claim under rule 21.01(1)(a).

[35] There are also in my view no grounds for dismissing this aspect of Ms. Ingram’s application as against Ms. Charron personally. Under s. 67(3) of the SLRA, an estate trustee who distributes estate assets after being served with a s. 58 application can be held personally liable for any shortfall. On Ms. Charron’s own evidence, she distributed to herself the $1,910.07 that remained in the estate in July 2021, which was some four months after Ms. Ingram commenced her application.

[36] Accordingly, if Ms. Ingram succeeds in asserting a dependant support claim for some or all of this money, Ms. Charron will potentially be personally liable for this amount. Again, the likelihood that the amount of money at stake will be small is not a legal basis for dismissing Ms. Ingram’s claim under rule 21.01(1)(a).

E. Is Ms. Ingram’s equitable trust claim limitations barred?

[37] In her Notice of Application, Ms. Ingram also sought:

An Order that [Ms. Ingram] is entitled to an interest in the Estate by virtue of Constructive Trust and Resulting Trust in relation to all estate assets on the basis of contribution or money’s worth.

[38] Ms. Ingram argues that because one of the main assets owned by the estate was the Ajax house, her claim for an equitable interest in this property is governed by s. 4 of the Real Property Limitations Act, R.S.O. 1990, c L.15, (the “RPLA”) which creates a ten-year limitation period for “an action to recover any land”.

[39] She relies in particular on the Ontario Court of Appeal’s decision in McConnell v. Huxtable, 2014 ONCA 86, where the Court held that claims based on unjust enrichment in which the plaintiff seeks a remedial constructive trust qualify as “actions to recover land” within the meaning of s. 4 of the RPLA. Writing for the Court of Appeal, Rosenberg J.A. held (at para. 38) that the plaintiff in that case was:

… 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 v. Baronow, 2011 SCC 10, [2011] 1 S.C.R. 269, demonstrate that a proprietary remedy is a viable remedy for unjust enrichment where there is a link or causal connection between her contributions and the acquisition, preservation, maintenance or improvement of the property.

[40] In response, Ms. Charron takes the position that the case at bar is distinguishable from McConnell v. Huxtable on two different bases. First, she argues:

In this case there is no evidence whatsoever that the Claimant made any financial contribution to the Ajax residence. There is no evidence that she was ever at the residence or even ever saw it. A careful reading of the Application makes it clear that she is not even asking for an equitable ownership interest in the house but rather as per paragraph 1(b) of the Application she is seeking an interest in the Estate by virtue of Constructive Trust or Resulting Trust in relation to all estate assets on the basis of contribution of money or money’s worth. It is not a true claim for a share of property. It is a claim against all estate assets. It is a depend[a]nts support claim disguised as an unjust enrichment claim in an attempt to avoid the limitation problem.

[41] I do not agree that it is accurate to characterize Ms. Ingram’s constructive trust claim as merely a repackaged version of her SLRA dependant support claim. The juristic bases for her two claims are different. Success on one or the other of her claims might lead to Ms. Ingram being granted different remedies, and her failure on one claim would not necessarily preclude her from succeeding on the other.

[42] Claims under s. 58 of the SLRA are based on the premise that the deceased had a moral obligation to financially support the claimant after his or her death, which the legislature has determined should give rise to a corresponding legal obligation on the part the deceased’s estate.

[43] A court considering a s. 58 application must consider whether the deceased has made “adequate provision for the proper support” for the claimant, with s. 62 then directing the court to “consider all the circumstances of the application”, including the factors listed in ss. 62(a) to (s). As Blair J.A. explained in Cummings v. Cummings, at paras. 50-51:

When examining all of the circumstances of an application for dependants' relief, the court must consider,

(a) what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and,

(b) what moral obligations arise between the deceased and his or her dependants as a result of society' s expectations of what a judicious person would do in the circumstances.

Either or both of these types of obligations fit nicely into the lengthy list of factors already articulated in subsection 62(1).

[44] The extent to which the claimant did work or made financial contributions that benefitted the deceased and/or his or her estate will be a relevant circumstance that must be considered under s. 62 of the SLRA, but it is neither essential nor dispositive. There are many other factors that must also be taken into account, and support can still be ordered under s. 58 even if the claimant did not do anything during the deceased’s lifetime that might support an argument that the estate was unjustly enriched.

[45] In contrast, Ms. Ingram’s claim for a remedial constructive trust over the estate property, including the Ajax house, hinges on her allegation that the estate has been unjustly enriched by the benefits she says she provided for Mr. Kulynych during his lifetime. Specifically, she maintains that he benefitted financially from living at her house, stating in her Notice of Application:

The Deceased resided in the home of the Applicant during the period of their cohabitation, while he rented his house out. This allowed the Deceased to accumulate significant value in a home at the expense of the Applicant. The Applicant is entitled to a portion of the home of the Deceased on the basis of constructive trust and unjust enrichment.

[46] In Bakhsh v. Merdad, 2022 ONCA 130, the Ontario Court of Appeal held that a claim for a remedial constructive trust is legally distinct from an equalization claim under the Family Law Act, R.S.O. 1990, c F.3, noting at para. 14 that:

…it does not follow that the expiration of time to bring an equalization claim entails the expiration of a constructive or remedial trust claim. Equalization claims and equitable trust claims remain distinct.

[47] In my view, the same conclusion applies to dependant support claims against an estate under s. 58 of the SLRA. These claims are similarly legally distinct from any equitable trust claim over particular estate property that a claimant might also be advancing.

[48] It also does not matter that the Ajax property was sold nearly two years before Ms. Ingram commenced her application. In McConnell v. Huxtable, Rosenberg J.A. held that an “alternative claim for a monetary award can shelter under s. 4” of the RPLA (at para. 40). More recently, in Studley v. Studley, 2022 ONCA 810, at paras. 33-38, the Ontario Court of Appeal extended this reasoning and held that the s. 4 RPLA limitation period also applies to claims that are only commenced after the property over which equitable ownership rights are asserted was sold. As Trotter J.A. explained, at para. 35:

I acknowledge that this case differs somewhat from McConnell and Bakhsh. In those cases, the properties had yet to be sold; here, they were sold by the appellant after the date of separation. Nonetheless, I agree with the motion judge that an otherwise tenable trust claim in land, one that would be sheltered by s. 4 of the RPLA, cannot be defeated by the sale of that land. This conclusion is supported by both McConnell and Bakhsh. Moreover, a contrary interpretation might incentivize strategic, covert sales designed to reduce the limitation period from 10 years to two, extinguishing an otherwise viable claim. I do not suggest that this happened here. However, it is a foreseeable consequence of the appellant’s position on the operation of s. 4 of the RPLA.

[49] It is important to reiterate that this is not a summary judgment motion, and that it is not my task to decide whether Ms. Ingram’s equitable trust claim is factually well-founded. Rather, the sole issue before me on this motion is whether her claim is statute-barred. In my view, this question hinges entirely on the legal nature of her claim, not on its prospects of success at trial.

[50] The lack of evidence that Ms. Ingram ever contributed money directly to the Ajax house, or that she ever visited it or even saw it, may all be factors that undermine the strength of her claim that she should now be granted a remedial constructive trust over this property, or given a monetary award as an alternative. However, they do not affect the juristic character of the claim she seeks to advance.

[51] Ms. Charron’s second argument is that the Ontario Court of Appeal’s interpretation of s. 4 of the RPLA in McConnell v. Huxtable should be understood as not applying in the special context of estates litigation. As she puts it in her factum:

[I]t was never the intention of the Court of Appeal to suggest that the ten year limitation in the RPLA could be applied to constructive Trust claims in the Estate context. The manner in which the Claimant in this case is attempting to utilize and apply the McConnell v. Huxtable decision is, it is respectfully submitted, a twisted and unintentional application of the decision. It would lead to an absurd result precluding Estate Trustees in this Province from distributing estate assets for ten years until the RPLA ten year limitation period had expired. This would result in chaos and havoc and is nonsensical.

[52] In support of this argument, Ms. Charron points to s. 38 of the Trustee Act, R.S.O. 1990, c T.23, which states:

38(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.

[53] Subsection 38(3) provides further that actions under the section “shall not be brought after the expiration of two years from the death of the deceased”. Unlike the general two year limitation period in the Limitations Act, 2002, the s. 38(3) Trustee Act limitation period cannot be extended on the basis of discoverability: Waschkowski v. Hopkinson Estate.

[54] There is some force to Ms. Charron’s argument that applying the 10 year limitation period in s. 4 of the RPLA to claims against estates would undermine the apparent legislative policy objective of s. 38(3) of the Trustee Act, namely, avoiding “indefinite fiscal vulnerability for an estate”: Waschowski, at para. 9. My colleague Leach J. raised similar concerns in obiter in Rolston v. Rolston, 2016 ONSC 2937, observing at para. 60:

Whether or not our Court of Appeal intended its ruling in McConnell v. Huxtable to apply in the context of claims against an estate or estate trustee for unjust enrichment, constructive trust and alternative remedies is an interesting question, particularly when such an outcome might significantly prolong the “fiscal vulnerability of an estate” which the shorter two year limitation period in s.38(3) of the Trustee Act was designed to limit.

[55] However, Leach J. found it unnecessary to decide this question in Rolston, because he concluded that the plaintiff’s claim in that case was being brought against the living persons who had competing claims to the disputed land, rather than against the estate of the deceased former owner.

[56] While I agree that Ms. Charron has raised a legitimate concern, I am unable to give effect to her argument, for three main reasons.

[57] First, the plain wording of s. 38(2) of the Trustee Act indicates that in cases involving actions against an estate, the two year limitation period in s. 38(3) only applies to actions arising out of “wrongs” in respect of the claimant’s person or property that were either committed by the deceased, or for which the deceased is liable.

[58] People who claim some form of legal or equitable ownership of real property that forms part of a deceased’s estate, including through a remedial constructive trust, will not necessarily be alleging that the deceased committed any wrongful act while he or she was alive. In the case at bar, for instance, Ms. Ingram does not suggest that Mr. Kulynych did anything wrong when he accepted the benefits that she says she bestowed on him during their relationship. Rather, her claim is that it would now be unjust for his estate not to provide her with compensation.

[59] Second, the extended limitation period in s. 4 of the RPLA does not contain any language restricting its operation to “actions to recover land” in which the defendants with competing claims to the land are all living persons. If the legislature had wanted to limit the section in this manner, it could easily have done so explicitly.

[60] Third, while Ms. Charron cites a number of cases that have applied the s. 38(3) Trustees Act limitation period to various different causes of actions, none of these cases dealt with a claim for equitable title over real property.

[61] In Smallman v. Moore, [1948] S.C.R. 295, the Supreme Court of Canada was addressing an action for breach of promise to marry. In Roth v. Weston Estate, the plaintiff and the deceased had been partners in a medical practice, and had each taken out life insurance policies naming the other as the beneficiary. The deceased then committed suicide, triggering an exclusion clause in his policy, and the plaintiff sought to sue his estate on the basis that the deceased had breached his fiduciary duty and committed a breach of contract by taking his own life. Bonaparte v. Canada, sub nom. Lafrance Estate v. Canada, involved an action against the Crown by the estates of deceased residential school attendees.

[62] In Ethier v. Raspberry, 1998 CarswellOnt 4483 (Div. Ct.), which Ms. Charron characterizes as the decision that is “perhaps most similar” to the case at bar, the plaintiff alleged that she had cared for and provided services to the deceased for twenty years, on the strength of a promise that the deceased would compensate the plaintiff in her will. The Divisional Court held that all of the plaintiff’s claims, including her claim for a constructive trust over the estate’s assets, were statute-barred by s. 38(3) of the Trustee Act.

[63] While I agree that there are some strong factual parallels between Ms. Ingram’s allegations and those made by the plaintiff in Ethier, I do not read the Divisional Court’s decision as controlling on the legal question that is now before me. The Divisional Court’s reasons do not reveal whether the estate assets in Ethier over which the plaintiff was claiming a constructive trust included any real property, nor is there any indication in the judgment that applicability of the limitation period in s. 4 of the RPLA was raised by the parties or considered by the Court.

[64] In any event, Ethier v. Raspberry was also decided sixteen years before the Ontario Court of Appeal held in McConnell v. Huxtable that constructive trust claims qualify as “actions to recover land” to which the 10 year limitation period in s. 4 of the RPLA applies. To the extent that the Divisional Court’s prior judgment might suggest otherwise, it has now been overtaken by the Court of Appeal’s more recent judgment.

[65] At the same time, I do not read my colleague Kimmel J.’s decision in Gill v. Gill, 2022 ONSC 4610, which Ms. Ingram cites and relies on, as directly addressing the contested question.

[66] Gill involved a dispute between two brothers over ownership of some property they had jointly purchased together. Each brother brought his own application, and the two applications were eventually consolidated. One of the brothers died after the litigation was commenced, and his estate obtained an order to continue.

[67] Kimmel J. held that the estate’s claim was not statute-barred. She assumed, without analysis, that the applicable limitation period was the 10 year limitation period in s. 4 of the RPLA, but found that the clock had not yet started to run because the deceased had always had actual possession of the disputed land up to the point that he commenced his application: Gill v. Gill, at para. 28; see also Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623.

[68] On this analysis, even if the applicable limitation period had been the shorter 2 year limitation period in s. 38(3) of the Trustee Act the result would have been the same, since that limitation period only begins to run at the time of the deceased’s death, and in Gill v. Gill the application had been brought by the deceased when he was still alive.

[69] My own research has led me to only one case that I consider to be directly on point. That case, a decision of my colleague Rowsell J. in Wilkinson v. The Estate of Linda Robinson, 2020 ONSC 91, stands against Ms. Charron’s position.

[70] In Wilkinson, the applicant sought a constructive trust over the home he had shared with his deceased common law spouse. Her estate brought a motion to have the application dismissed on the grounds that it was commenced outside the two year limitation period in s. 38 of the Trustee Act. In response, the applicant, relying on the Ontario Court of Appeal’s decision in McConnell v. Huxtable, argued that the s. 38 limitation period did not apply, and that his claim was instead governed by s. 4 of the RPLA.

[71] This is the very same legal question that is now being raised before me in Ms. Charron’s motion. Like Ms. Charron, the estate in Wilkinson argued that McConnell v. Huxtable should be understood as limited to cases involving living defendants.

[72] My colleague Rowsell J. considered and rejected this argument, explaining at paras. 19-24:

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.

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.

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.

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.

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.

I do not propose to differentiate between live parties and deceased parties. The Estate’s motion is therefore dismissed.

[73] My colleague Rowsell J.’s decision is not binding on me. However, under the principle of horizontal stare decisis, I am obliged to follow it as a matter of judicial comity, unless it falls within one of the exceptions outlined by the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19, at paras. 73-86. As Kasirer J. explained Sullivan, at para. 75:

Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

[74] I am not satisfied that any of these exceptions apply here. Rowsell J.’s 2020 ruling in Wilkinson has not been undermined by any subsequent appellate decisions; he did not fail to consider any binding contrary authority; and he fully considered the argument being made by the respondent estate, which was substantially the same as the argument that Ms. Charron is now making.

[75] I am accordingly obliged as a matter of judicial comity to follow my colleague’s determination of this legal question.

[76] I would add that even if I were not bound to follow Rowsell J.’s decision, I would do so anyway. I am not persuaded that the Ontario Court of Appeal’s decision in McConnell v. Huxtable can be sensibly read as limited to cases where the defendant is not an estate. In my view, Ms. Charron’s policy arguments for why there should be a different rule in estates cases are ones that must now be addressed either by the Ontario Court of Appeal, or by the legislature. I am bound by the Ontario Court of Appeal’s decision.

[77] In summary, I find that Ms. Ingram’s constructive trust claim in relation to the Ajax house is not statute-barred. On the authority of McConnell v. Huxtable, her claim is governed by the 10 year limitation period in s. 4 of the RPLA, not by the 2 year limitation period in s. 38(3) of the Trustee Act. I am not prepared to interpret the Ontario Court of Appeal’s binding decision in McConnell v. Huxtable as carving out an exception for actions in estates cases.

[78] The doctrine of horizontal stare decisis prevents me from doing so, since my colleague Rowsell J. previously reached the contrary conclusion in Wilkinson. However, I would have reached this same conclusion even if I were free to decide the issue for myself. I am not satisfied that Ms. Charron’s proposed interpretation of the RLPA is supportable as a matter of statutory construction, nor do I accept her interpretation of the binding authority of McConnell v. Huxtable.

[79] It is also important to emphasize that applying the McConnell v. Huxtable interpretation of s. 4 of the RPLA to estates cases will not automatically make estate trustees vulnerable to untimely claims by persons seeking constructive trusts over estate property. Claimants will still bear the burden of establishing their claims on their merits. Moreover, since the constructive trust is an equitable remedy, it will also be the claimants’ burden to establish that the remedy of imposing a constructive trust is fair and appropriate in all the circumstances.

[80] As McLachlin J. (as she then was) observed in Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, at para. 34, a decision to grant a constructive trust remedy will be:

… informed by the absence of an indication that a constructive trust would have an unfair or unjust effect on the defendant or third parties, matters which equity has always taken into account. Equitable remedies are flexible; their award is based on what is just in all the circumstances of the case.

[81] If an estate trustee acting in good faith has already distributed the estate’s property to the beneficiaries before any constructive trust claimant comes forward, a court of equity will be entitled to take this into consideration when deciding whether to grant the remedy sought.

F. Ms. Ingram’s argument that she is the primary beneficiary under Mr. Kulynych’s 1989 will

[82] As I noted earlier, Ms. Ingram is also making an analytically distinct claim against Mr. Kulynych’s estate based on the argument that the term of his 1989 will leaving the residue of his estate to his “wife” should be understood as applying to her, on the basis that she claims that she was his common law spouse at the time of his death in 2017.

[83] Ms. Charron does not address this aspect of Ms. Ingram’s application in her motion materials. In her responding affidavit, Ms. Charron indicates that she still intends to pursue this claim, but her counsel also did not address it in his responding factum.

[84] Since neither party has addressed this aspect of Ms. Ingram’s claim, it would not be appropriate for me to say anything more about it. Nothing in these reasons should be taken as deciding, one way or the other, whether Ms. Ingram’s claim that she should be understood as the primary beneficiary under the will may be statute-barred, or as addressing the question of whether her argument has any legal merit.

III. Disposition

[85] In the result, Ms. Charron’s motion is dismissed. Although Ms. Ingram’s s. 58 SLRA claim will be limited to the value of the estate property that remained undistributed at the time she commenced her application, she is not statute-barred from pursuing her claim for this amount, even though on Ms. Charron’s evidence the most she will be able to claim on this basis will be less than $2,000.

[86] Ms. Ingram’s further claims for a constructive trust in relation to the Ajax house, or for monetary damages in the alternative, are also not statute-barred. I find on the basis of McConnell v. Huxtable that these claims are governed by the 10 year limitation period in s. 4 of the RPLA. I emphasize that I express no opinion about the merits of Ms. Ingram’s claims, or whether the facts will entitle her to receive a constructive trust remedy. I would add that the court that decides Ms. Ingram’s application will be entitled to take into account the evidence that Ms. Charron sold the Ajax house and distributed the sales proceeds to the beneficiaries under the will well before Ms. Ingram commenced her application.

[87] I am expressly not addressing whether Ms. Ingram’s further claim that she should be understood to be the primary beneficiary under Mr. Kulynych’s 1989 will is limitations-barred, since neither party addressed this issue in their facta. I emphasize that I also express no opinion about whether this aspect of Ms. Ingram’s claim has any legal merit.

[88] I would urge the parties to try to reach an agreement on costs. If they are unable to do so, they may file brief written submissions of no more than two pages in length, along with their bills of costs. Since Ms. Ingram has been the more successful party on this motion she shall file her costs submissions first, within four weeks of the date of these reasons. Ms. Charron will then have four weeks to file responding submissions. All submissions should be filed with the court office and posted on Caselines, and counsel should also email copies to my judicial assistant.

The Honourable J. Dawe Date: August 9, 2023