Limitation Periods in Estate Legislation
- A Minor Problem
- Limitations Period in Estate Litigation
- Webster v. Webster - Limitation Periods and Equalization Periods - When is it too Late
A Minor Problem
The issue of limitation periods continues to bedevil the profession (and the courts for that matter). It is a subject that I seem to return to time and time again in both my blogs and more formal CLE presentations.
In the latest word from the Ontario Court of Appeal, the court considered the transition rules under the new Limitations Act, 2002 (the "new Act") and the appointment of a litigation guardian.
In Philion (Litigation Guardian of) v. Lemieux (Estate of), a minor was injured in a car accident before the new Act came into effect on January 1, 2004. The minor had not yet commenced legal proceedings, but a number of other lawsuits have been launched as a result of the accident. A "potential defendant" brought a motion to have the Children's Lawyer appointed as litigation guardian for the "potential minor plaintiff" under s. 9 of the new Act. The affect of the appointment would be to cause the two-year limitation period to begin to run immediately as opposed to when the minor reached the age of majority. A litigation guardian was appointed by the lower court. The minor's mother appealed hoping to delay the running of the limitation period. Tragically, the minor had suffered a severe brain injury and it was too soon to determine whether the minor's condition would approve or deteriorate over time.
To cut a long and legally complex story short, the court held that in accordance with the transition provisions of s. 24 of the new Act, the former limitation period applied. As a result, s. 9 of the new Act was not available to the potential defendant. The appeal was allowed. In its decision, the court reject a strict interpretation of the words "former limitation period" as referred to in s. 24.
Interpreting limitations periods, and in particular the transition provisions under the new Act, are notoriously difficult. However, if nothing else, the Philion decision provides further guidance to the profession as to how to navigate the choppy waters of the transition provisions of the new Act.