The Court of Appeal decision in Shannon v. Hrabovsky is an unfortunate addition to limitations jurisprudence. Arguably, it stands for the principle that the basic limitation period applies to will challenge proceedings. An appellate court has never before considered the issue, and there is much to criticize about the few lower court decisions that Shannon cites in accepting, without consideration, that will challenge are subject to statutory limitation.
The applicant in Shannon successfully challenged the validity of a will. On appeal, the respondents argued that the application judge ought to have found the application statute-barred by the Limitations Act’s basic two-year limitation period. They sought leave to adduce fresh evidence to support their limitations defence. The appeal is really about the entitlement to adduce fresh evidence, not the limitation of will challenges, and so it’s arguable that the limitations analysis is obiter.
I wrote about the application decision here. I criticised its limitations and analysis and later Matthew Furrow and I published a paper arguing that applying statutory limitation periods to will challenges is ahistorical (it was uncontroversial that statutory limitation periods didn’t apply to will challenges from the date of reception until 2004), and requires taking an indefensibly flexible approach to the application of the s. 5 discovery provisions: see Will Challenges and the Limitations Act, 2002: A Reconsideration, 40 Est. Tr. & Pensions J. 190 (2020-2021). I also made the point more succintly in the fourth edition of the Law of Limitations:
The Act applies only to causes of action. A will challenge is not a cause of action; it is a contested proceeding to prove a will in solemn form. Section 2 of the Act limits its application to “claims” pursued in court proceedings.
Reformed limitations statutes apply to “claims” instead of causes of action. The “claim” converts every cause of action, for limitations purposes, into a single remedial unit comprised of two elements: actionable conduct and resulting loss. In doing so, it allows for a universal basic and ultimate limitation period with one set of accrual rules. However, as the Supreme Court of Canada observed in Grant Thornton LLP v. New Brunswick, the distinction between the “claim” and the cause of action it derives from can be one without a difference. Simply, reformed limitations statutes continue to apply only to causes of action pursued in court proceedings. As a will challenge is not a cause of action, the current Act — and any other provincial act that applies to “claims” pursued in court proceedings—does not apply to it.
A will challenge is the square peg to the Act’s round hole. There are procedural issues. The expiry of a limitation period is an affirmative defence that a defendant/respondent must plead and prove. Yet the party challenging a will may be a plaintiff/applicant or a defendant/respondent depending on which method is used to bring the proceeding to court. There is no procedural mechanism for a plaintiff/applicant to plead a limitations defence.
There are discovery issues. Codified discovery is premised on a defendant committing actionable conduct — an “act or omission” — that causes damage to the plaintiff. A will challenge does not arise from actionable conduct. The absence of actionable conduct makes it impossible to identify the presumptive commencement of the basic limitation period and the ultimate limitation period because both run from the date of the actionable conduct. It also makes it impossible to obtain knowledge of three discovery matters: commission of actionable conduct by the person against whom the claim is made causing the plaintiff loss. As the Supreme Court of Canada formulated it in Grant Thornton, discovery requires knowledge of “the material facts upon which a plausible inference of liability on the defendant’s part can be drawn”. A will challenge does not result in a finding of anyone’s liability.
Shannon doesn’t address any of these issues. Because the parties agreed that the basic limitation period applies to will challenge (why the applicant conceded that point is mysterious), the Court of Appeal didn’t consider the correctness of this premise. Instead, its reasoning treats the application of the Limitations Act to will challenges as noncontroversial. This is disappointing. You can’t blame the court for not considering arguments the parties didn’t make, but you might hope that in engaging with the application of s. 5 to a will challenge there might have been some consideration given to whether the principles that originate in Leibel make sense, because they don’t.
Let’s take a look at the application judge’s analysis:
In the present circumstances, Gayle had all the facts necessary to commence her application, on the grounds of both a lack of testamentary capacity and undue influence, before the Testator’s death, with the exception of knowledge of the existence and contents of the 2007 Will. While she had suspicions that a will had been executed in 2007, she was never able to confirm its existence nor was she made aware of its contents until January 2015, after the date of death. Accordingly, Gayle has established that, on the date of the Testator’s death, when the act on which the claim is based occurred, being the effectiveness of the 2007 Will, she did not have knowledge of the existence and contents of the 2007 Will which are essential elements of her application. Gayle has therefore rebutted the presumption in section 5(2) that she had knowledge of the matters referred to in section 5(1)(a) on the day on which the act or omission on which her claim is based occurred. Gayle did not discover the claim in this application until sometime in January 2015, with the result that the two-year limitation period under the Act did not begin to run until that time. [Emphasis added.]
Just like in Leibel, this reasoning only works at the most superficial level. If the testator’s death is the act on which the applicant’s claim is based, it means that to discover the claim, the applicant required knowledge “that the act or omission was that of the person against whom the claim is made”–in other words that the respondents committed the act of the testator’s death. That’s absurd. At risk of belabouring the point, this a symptom of the fundamental problem: a will challenge isn’t based on any actionable conduct and it doesn’t seek an in personem remedy against an individual. It has never been subject to statutory limitation (and, I’d argue, equitable limitation) because it is not a creature of the common law or equity, but canon law.
In sum, please hire me to argue this point.
