O’Neill Estate v. Cahill, 2026 ONSC 1176

Court File and Parties

CITATION: O’Neill Estate v. Cahill, 2026 ONSC 1176

COURT FILE NO.: CV-25-00099920-00ES

DATE: 2026 01 25

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF KATHLEEN MARY O'NEILL, deceased

B E T W E E N:

RE: D'ARCY DESMOND O'NEILL IN HIS CAPACITY AS ESTATE TRUSTEE FOR THE ESTATE OF KATHLEEN MARY O'NEILL, Applicant (Moving Party)

AND:

PATRICK CAHILL, Respondent (Moving Party)

BEFORE: C. MacLeod RSJ

COUNSEL: Farhad Mehr, for the Applicant

David Scharf, for the Respondent

HEARD: January 20, 2026

Endorsement

1On January 20, 2026, I heard a motion for possession of premises previously owned by the deceased and now the property of the estate. There was also a motion to strike an application by the Respondent, Mr. Cahill, in which he asked the court to declare that he is a beneficial part owner of the property. (Court file no. CV-26-102618).

2Although there were requests to adjourn the matter, Mr. Cahill conceded that he could not purchase the property from the estate and agreed it should be sold. Accordingly, I made an order providing Mr. Cahill until the end of March 2026 to vacate the premises. I directed that if the property was subsequently sold by the estate, no more than 50% of the net proceeds could be distributed until further order. I reserved on the motion to strike and the question of costs.

3This is my decision on the motion to strike the application against the estate. Although Mr. Cahill did not file documents in opposition to the Application by the Estate for vacant possession and sale of the premises, he did commence the separate Application claiming an ownership interest in the premises or a share of the proceeds of sale.

4The Estate seeks to strike the 2026 Application on the basis that it cannot succeed. It is the position of the Estate that the claims advanced in that Application are statute barred. For the reasons that follow, I agree that the applicable limitation period has expired, and Mr. Cahill cannot pursue his claims against the estate in a separate application. He will, however, be allowed to plead those equities in opposition to the claim by the estate for occupation rent.

5Given the circumstances and the mounting legal costs, I require that the parties attempt to mediate before running up further legal costs.

Background

6Patrick Cahill and the deceased, Kathleen O’Neill cohabited for at least a decade before her death. At all material times they lived together in a home owned by Ms. O’Neill. Mr. Cahill has continued to reside in the home since her death in May of 2023. He has not paid rent and the Estate Trustee seeks vacant possession in order to sell the premises and to complete the administration of the Estate as he is obliged to do.

7There is no doubt that the property has vested in the estate and no dispute that Mr. Cahill has not been paying rent. He asserts that he should be entitled to a beneficial share of the premises due to significant contributions he made to improving the property and promises made to him by Ms. O’Neill during the period of co-habitation. That is the subject matter of the Application launched by Mr. Cahill in 2026.

8In her last will and testament, the deceased did not leave Mr. Cahill a share of the home but she did name him as a beneficiary. Under the terms of the will, Mr. Cahill is entitled to a 10% interest in the residue of the estate. This is also not in dispute.

9As noted above, Mr Cahill has now agreed to vacate the premises although he asked to delay that event for longer than appeared reasonable. The court has authorized the Estate to obtain a writ of possession if Mr. Cahill has not made alternative arrangements and moved out by the end of March. This is necessary so that the property can be sold.

10The order for vacant possession also disposes of the application except for the claim for occupation rent and costs. The estate is advancing a claim for three years of occupation rent at market rates. In addition to the claims he is advancing in his 2026 Application, Mr. Cahill asserts that, while he did not pay rent, he has paid expenses. The issue of occupation rent and any credits to which Mr. Cahill should be entitled was adjourned and remains outstanding.

11In the Application at issue, Mr. Cahill seeks a finding that he is a part owner of the premises based on the doctrine of “promissory estoppel”. As discussed above, he alleges that during cohabitation, he invested time and money in making improvements to the home. Specific to his promissory estoppel claim, Mr. Cahill alleges he was promised that he and the deceased would share in the net proceeds of sale. He states that he relied on this promise by the deceased in “making capital improvements to the Home at his sole cost for labour and materials and in refraining from work he would otherwise have done and been paid for.” He asserts that he had a reasonable expectation of an ownership interest based on these promises and it would be unjust for the estate to renege on the promises made to him while the deceased was alive.

12To be successful in his Application, Mr. Cahill will have to overcome a number of evidentiary difficulties, including but not limited to s. 13 of the Ontario Evidence Act.¹ For purposes of this motion, however, I am not determining whether or not his claim will succeed but only if it is impossible of success. It will be impossible for him to pursue the Application successfully if the claims are plainly foreclosed by one of Ontario’s statutes of limitation.

13The Estate contends that the applicable limitation period is the two year period that runs from the date of death pursuant to the Trustee Act.² Alternatively, the claim would be barred by the two year limitation period under the Limitations Act, 2002 ³ which would run from the date the cause of action was “discovered”. While the Respondent acknowledges that debt claims against the estate or the estate trustee are statute barred, Mr. Cahill takes the position that a claim for an interest in land is governed by the Real Property Limitations Act ⁴ and is therefore subject to a more generous ten-year limitation period.

14The issue on the motion is whether it is plain and obvious that a two year limitation period applies. In that case, the claim is barred and should be dismissed. If that question is unclear, then it would not be appropriate to dismiss the Cahill Application at this time.

The Statutory Framework

15The Real Property Limitations Act is what was left of Ontario’s former 19th Century limitations statute when a modern statute of limitations came into effect in 2004. The former legislation with some amendments continues to apply to most claims regarding land and is written in Victorian English employing feudal concepts. As an example, the definition of “land” is as follows:

“land” includes messuages 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;

16Regardless of the density of the wording, if the claims of Mr. Cahill are properly categorized as “an action to recover any land”, the limitation period would be 10 years from the date the cause of action arose or from the date of the death of the deceased.⁵

17Most claims not covered by the Real Property Limitations Act are captured by the Limitations Act, 2002 which provides that no legal proceeding may be commenced after the second anniversary of the date on which the cause of action was discovered which is in turn deemed to be the date on which the wrong occurred. There is also an “ultimate limitation period” which precludes claims advanced after the 15th anniversary of the date on which the act or omission giving rise to the claim occurred.⁶ The ultimate limitation period need not be of concern for purposes of this motion.

18There is a further limitation period in the Trustee Act. Pursuant to that Act, claims against a deceased for wrongs occurring during his or her lifetime survive death for only two years.⁷ The parties concede that unless the Real Property Limitations Act applies, the limitation period would have been two years from the date the cause of action arose or two years from the death of the deceased and in either case it would have expired before the Application was launched.

Analysis

19As can be seen from the discussion above, there are three limitation periods that could apply in this case. If the claim is for an interest in land covered by the RPLA, the applicable limitation period is 10 years. If it is a claim that may be “pursued in court proceedings” to which the RPLA (or certain other non applicable exceptions) does not apply, the limitation period would be 2 years from the date on which the cause of action was “discovered”.⁸ If the claim is a claim for a wrong committed by a deceased person during his or her lifetime, preserved by s. 38 (2) of the Trustee Act, the limitation period is two years from the date of death.⁹

20The critical question is whether the claim advanced by Mr. Cahill clearly falls into one of these categories. If the claim is for breach of a promise to grant him an interest in the land, then is that a claim for an interest in land or is it a claim for a wrong done to him by the deceased? On the face of it, one would suppose that an interest in land that had vested prior to death would be subject to the longer limitation period while a claim against the estate arising from a breach of promise by the deceased would attract the shorter limitation period. This distinction is not so clear in practice.

21There are various decisions dealing with the question of competing limitation statutes. I find it necessary only to consider the decisions of the Court of Appeal. That jurisprudence is both clear and binding.

22In McConnell v. Huxtable ¹⁰, the Court of Appeal, in what it described as a “case of first instance” held that a claim for remedial constructive trust as a consequence of unjust enrichment was a claim for an “interest in land pursuant to a judgment of the court”. The court held that even though it was claim for a remedy with a money judgment as an alternative, it was a claim which falls within the RPLA and is subject to the 10 year limitation period. That decision took place in the context of a family law dispute and did not involve an estate. It was a contest between the RPLA and the LA, 2002. The RPLA was held to govern.

23Approximately 9 years later, in Bank of Montreal v. Iskenderov, a 5 judge panel of the Court of Appeal ruled that a fraudulent conveyance claim was not a claim for an interest in land and fell within s. 4 of the LA, 2002.¹¹ In part this was based on a historical review of the old legislation and the predecessor English legislation. The court concluded that a fraudulent conveyance claim had never been subject to the limitation period in the RPLA. The court also reasoned that the result of a successful fraudulent conveyance claim was not to vest the land in the plaintiff but simply to permit the plaintiff to enforce a judgment against the land or against the purchase price. Again, this did not involve an estate and the choice was between the LA, 2002 and the RPLA.

24Iskanderov is important because it discusses the conceptual framework necessary to determine what is covered by the RPLA. Although the Court of Appeal specifically overruled previous decisions holding that fraudulent conveyances were subject to the longer limitation period, it did not overrule the decision in McConnell. To the contrary, McConnell was cited with approval.¹² Iskanderov is authority that McConnell was properly decided and remains good law. Again, this was a contest between the LA, 2002 and the RPLA. The TA did not apply.

25The following year in Ingram v. Kulynych Estate ¹³, the Court of Appeal did deal with the effect of the limitation period in the TA. The court relied upon the principles of statutory interpretation established in Iskanderov and recognized the continuing authority of McConnell. It held, however, that the limitation period in the TA was a “strict limit” to which discoverability principles did not apply and which demonstrated “the legislative intent that actions against estates be subject to the shorter limitation period”. ¹⁴ The court concluded that equitable claims arising from unjust enrichment, that is “a benefit, a corresponding deprivation and the absence of juristic reason for the benefit and the loss” were captured by s. 38 of the TA.

26While the court in Kulynych Estate did distinguish between a claim for an interest in the estate and a claim for an interest in the land (at para 60), that was an alternative rationale for the result. The principle finding was that if the TA and the RPLA conflicted, the TA was the more specific statute and would govern. (para. 55).

27As a consequence, the Court of Appeal has clearly established that while remedial claims for an interest in land are subject to a 10 year limitation period while a person is alive, they are subject to a two year limitation period after the death of the legal owner. Specifically, the cases mentioned above establish the following:

a. Claims for remedial constructive trust which do not involve an estate are subject to the 10 year limitation period under the RPLA and not the 2 year limitation period under the LA, 2002. (McConnell)

b. Claims for remedial constructive trust which do involve an estate must be asserted within two years from the death of the deceased pursuant to the TA. (Kulynych Estate)

c. Any claim, such as a fraudulent conveyance, which was never caught by the former Limitations Act, and is not protected by the 10 year period in the RPLA, will be subject to the 2 year limitation of the LA, 2002 (Iskanderov) or, in the case of an estate, the strict 2 year limitation period in the TA. (Kulynych Estate)

28In another 2024 decision, Gomes v. Da Silva, the Court of Appeal dealt with an appeal from a decision dismissing a claim by one of three siblings that he was the 100% owner of the family home. He had owned the home jointly with his mother and when her interest devolved to the three siblings, he became the owner of 62.5% of the property but he claimed he was entitled to full ownership based on “resulting trust” or on his contributions to his mother’s care. At paragraph 12 of the decision, the court concluded that “an action to recover any land” included a claim for resulting trust or constructive trust and was governed by the RPLA.

29While ownership of the property in Gomes had devolved on the siblings due to the death of their mother, this was not a claim against an estate. The court did not refer to Kulynch Estate or the limitation period in the TA but that is hardly surprizing because the Estate and the Estate Trustee (if there was one) were not parties. Instead, this was a dispute between co-owners in the context of a partition and sale application.¹⁵ In addition, the case is distinguishable because the court found that the 10 year limitation period began to run during the lifetime of the deceased and had expired prior to her death. This decision does not contradict the finding in Kulynych Estate. The court held that nothing in the RPLA had the effect of postponing the running of the limitation period until the date of death. Claims that have expired before the death cannot be asserted following the death.

30The Notice of Application seeks a “declaration that during the lifetime of Kathleen Mary O’Niell, Patrick Cahill acquired a beneficial interest in the property …”, a “declaration that the estate … holds [the property] in trust for Patrick Cahill, subject to his beneficial interest in the property to the extent necessary to avoid unconscionability”. The basis of the claim is said to be the doctrine of “promissory estoppel” although later the claim is described as “proprietary estoppel”. Regardless of what it is called, the basis of the claim may be summarized as follows:

a. Representations and assurances made by the deceased during her lifetime such that Mr. Cahill expected to enjoy “some right or benefit in the property”.

b. His reliance on the assurances and his reasonable expectations in doing extensive repairs and making capital improvements to the home.

c. His expenditure of labour and materials and his personal detriment in expending money, labour and time on improving the home in reliance on the representations and assurances.

d. The common law relationship and mutual assurances that the parties were intimate life partners for mutual benefit including the representation that Mr. Cahill had a beneficial interest in the home.

e. His contribution, at his sole expense and detriment, of a deck and patio, new furnace, new roof, maple-laminate flooring, basement renovations, other repairs, maintenance and capital improvements.

f. An increase in the value of the home at least in part because of Mr. Cahill’s contributions and work.

31This is an attempt to plead around the jurisprudence and the statute by calling the claim something other than it clearly appears to be. That is an unjust enrichment claim and a claim to a remedial resulting trust. Alternatively, if the claim is for breach of promise to grant him an interest in the home or to leave him an interest in her will, that is not properly speaking a claim to an interest in land.

32In addition, “promissory estoppel” as such is not a cause of action. It is a principle that can be asserted to preclude a party from advancing a claim or defence.¹⁶ “Proprietary estoppel” may found a cause of action but the components of such a cause – a representation on the basis of which the claimant expects to enjoy a right or benefit over property, reasonable reliance on the representation, and a detriment suffered as a result of the reliance – are virtually indistinguishable from the equitable claims that Kulynych Estate held to be subject to the limitation period in the TA.¹⁷ The court in Kulynych states that the TA applies to all “equitable trust claims against estates”.

33A claim for a breach of promise would have arisen when the promise was made and not fulfilled. At the latest that would have occurred when the will was probated, and the contents became public but in any event the limitation period in the TA runs from the date of death. It appears that the claim is statute barred under the Trustee Act on the authority of Kulynych Estate.

34I conclude that the motion should be granted and the Application recently launched by Patrick Cahill should be stayed on the basis of the limitation period.

35That is not the end of the matter, however, because the estate is pursuing Mr. Cahill for occupation rent. Even though he cannot sue separately for an interest in the property or for damages for breach of promise, he may nevertheless be entitled to raise the equities described in his Application as defences to that claim.¹⁸

36Rule 2.01 of the Rules of Civil Procedure provides that in general legal rights should not be defeated by technicalities and directs the court to “grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute”. It follows that, while Mr. Cahill may not pursue the statute barred application, he may plead those claims as a defence to the claim for occupation rent. I will therefore make an order permitting the Application to be filed as an Answer to the Estate Application for rent.

37Before leaving this point, I wish to reiterate a point I noted at the time of the oral argument. There is a certain circularity to these issues. The Respondent is entitled to 10% of the value of the residue of the Estate. Had he been successful in asserting a proprietary claim to the premises, the value of the Estate would have been reduced accordingly. The Estate now seeks occupation rent but there may be a significant set off to that claim. Add to that the question of costs – some or all of which may be borne by the estate - and the ongoing and accruing cost of continued litigation. It is hard not to think that somewhere there should be a reasonable and proportionate resolution available.

38This application is subject to mandatory mediation under Rule 75.1 or under Rule 24.1. Upon receipt of this decision, I direct the parties to arrange and participate in a mediation session before taking further substantive steps. This will not constrain the Estate from preparing and listing the premises for sale or obtaining a writ of possession should that be necessary.

Summary and Conclusion

39In summary, the motion by the Estate to dismiss the 2026 application (CV-26-102618) is granted. That application will be permanently stayed because a court proceeding to enforce that claim is barred by the Trustee Act. The claims asserted in the Application may, however, be pleaded as a setoff to the claim for occupation rent and the Respondent may treat the Application as his Answer to the Application by the Estate.

40Prior to taking any additional steps in this proceeding (other than the possession and sale of the property previously authorized), the parties are to engage in mediation with a view to resolving some or all of the issues.

41I may be spoken to regarding the costs of the Application and the Motion if the mediation does not resolve the issue.

Footnotes

1. 1Evidence Act, R.S.O. 1990, c. E.23 and see also, Statute of Frauds, R.S.O. 1990, c. S.19, ss 1 & 4
2. 2R.S.O. 1990, c. T.23 as amended
3. 3S.O. 2002, c. 24, Sched B, as amended
4. 4R.S.O. 1990, c. L.15, as amended
5. 5Ss 4 & 5 of the Real Property Limitations Act (RPLA)
6. 6S 4 & 15 of the Limitations Act, 2002 (LA, 2002)
7. 7Trustee Act, R.S.O. 1990, c. T.23, s. 38 (TA)
8. 8S. 4 & 5 of the LA, 2002, supra
9. 9S. 38 (3) of the TA, supra as preserved by s. 19 and the schedule to the LA, 2002
10. 102014 ONCA 86
11. 11Bank of Montreal v. Iskenderov, 2023 ONCA 528
12. 12Iskanderov, supra @ paras. 45 - 48
13. 132024 ONCA 678
14. 14Supra, para. 27
15. 15See the analysis in Sparovec v. Smith et al., 2025 ONSC 6530
16. 16See Maracle v. Travelers Indemnity Co. of Canada, 1991 58 (SCC), [1991] 2 S.C.R. 50 at para.
17. 17Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754 at para. 23 and
18. 18See Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175 at paras. 93 – 95 and see Pierce v. Canada Trustco Mortgage Co., (2005) 2005 15706 (ON CA), 254 D.L.R. (4th) 79 (Ont. CA). See also Mew, Rolph & Zacks, The Law of Limitations, Fourth Edition, 2023 Lexis Nexus Canada, pp. 229 – 235.