In Armitage v. The Salvation Army, Justice Ray held (incorrectly) that the limitation period for claiming compensation as a property attorney commences on the death of the person who granted the power of attorney.
[10] The principal issue is the limitation period applicable to the applicant’s claim for attorney compensation. The applicant’s position is that any claim must be commenced within two years of the death of the individual who granted the power of attorney, unless otherwise waived by those who are interested parties. She contends that the Substitute Decisions Act creates the right to compensation, is silent on any limitation period, and uses the permissive “may” in reference to when the claim could be made. The respondent agrees that the right to compensation was created by the statute but that the language of the statute in using “may” gives the attorney an option to claim compensation “each year”, which if not taken up by the commencement of proceedings within the following two years is to be treated as abandoned. He argues that a claimant must commence proceedings every three years in order avoid the limitation period. In other words, one is to infer from the statute that the end of each year triggers the beginning of the two year limitation period.
Justice Ray disagreed.
[15] I do not take the language of the Act or of the continuing powers of attorney to require the attorney to take their compensation annually such that it should be taken to trigger a limitation period if the compensation is not taken. […] [The death of the person who granted the power of attorney] terminated the continuing power of attorney. I conclude that it is at that point that the limitation period commenced. It was the triggering event. The applicant had two years within his date of death to commence proceedings, if that was to become necessary, to make her claim for compensation as an attorney.
As my colleague Matthew Furrow obliged to me to recognise, this decision is wrong. While there may be sound policy reasons for limiting a claim for attorney’s compensation after the death of the grantor, no limitation period applies to such an application. The application is not a “claim” within the meaning of the Limitations Act because it doesn’t seek to remedy loss resulting from an act or omission. If it’s not a “claim”, the basic and ultimate limitation periods can’t apply. In fairness to Justice Ray, neither party raised this point.
