The discreet issue for consideration at this motion is as follows: Can an estate trustee move to strike a beneficiary’s Notice of Objection to Accounts in the face of the estate trustee’s Application to Pass Accounts, based on the Limitations Act, 2002, or laches or acquiescence? For reasons that follow, I am satisfied that the beneficiary, Elizabeth Wall, is not barred from filing an objection to the accounts for the entire period under administration.
Marjorie Wall died in 2005. The objector was Elizabeth Wall, her daughter and beneficiary of the estate. Marjorie left the bulk of her estate to her two children in trust until they attained the age of 60 years. Both children were under 60 at the time of Marjorie’s death. The trustee had absolute discretion to pay funds to the children during their lifetime prior to reaching 60. If they didn’t reach 60, the will provided that the estate’s residue was to be divided amongst nieces and nephews. Elizabeth was 54 at the time of the application, so she had a vested interested in the discretionary trust and a contingent interest in the residue of the estate.
In response to her objection, the trustee took the position that he was not required to address it because it was time-barred, either by the Limitations Act or equity.
The court disagreed. Relying on the decision in Armitage, the court reasoned that if a passing of accounts doesn’t fit the definition of a “claim” in the Limitations Act, neither does a Notice of Objection:
 Based on the facts in Armitage, Hourigan J.A. found that the passing of accounts does not fit within the definition of a claim within the Limitations Act, 2002. In my view, if the passing of accounts does not constitute a claim, I am not satisfied that a Notice of Objection is a claim. In filing a Notice of Objection, the beneficiary is seeking answers to questions about steps taken by the estate trustee during the currency of an administration of an estate. Answers to those questions may assist the beneficiary in consenting to the passing of accounts without the necessity of a formal hearing. An absence of consent will require a formal hearing. A formal hearing will assist the court in determining if the fees sought and investment steps taken are appropriate under all the circumstances.
 The objections taken at their highest may result in a reduction or loss of compensation for the estate trustee or other remedies. In this case, if the objections are successful to any extent, no additional funds would be payable immediately to Elizabeth as beneficiary of the discretionary trust. The corpus of the estate would be enlarged, increasing the funds available for the discretionary trust, and ultimately, could increase the amount available to be paid to Elizabeth, but only if she survives to age 60. On the facts here, I am not satisfied that the Notice of Objection rises to the level of a “claim” as contemplated by the Limitations Act, 2002.
This reasoning is problematic. The threshold question is whether the Notice of Objection contains a “claim”. If so, as the Limitations Act applies to all claims pursued in court proceedings, it would limit the claim pursued in the Notice of Objection. Section 1 of the Limitations Act defines “claim”: “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. Accordingly, answering the threshold question requires assessing whether the elements that comprise a claim—wrongful conduct and resulting damage—are present.
In Armitage, the Court of Appeal found that an attorney for property’s application to pass accounts was not a “claim”. The application did not seek a remedy for any damage, but rather court approval of the attorney’s conduct.
The decision Wall does not quote the definition of “claim” and does not explicitly consider its elements. Rather, it reasons that if the application to pass accounts in Armitage was not a “claim”, then neither was the Notice of Objection. This is not a sound limitations analysis.
Indeed, the decision certainly gives the impression that the Notice of Objection was “claim”. In it, Elizabeth alleged that the trustee had wrongfully carried out his duties resulting in a diminution of the funds available to her; in other words, she sought to remedy damage resulting from wrongful conduct.
It may be that the court arrived at the correct decision, but from a limitations perspective it’s a very dubious decision.
Leigh Sands kindly brought to my attention Iaboni Estate v. Iaboni in which an application judge considered a limitations defence raised in response to a notice of objection without any suggestion that this is an unsettled area of the law:
Did the limitation periods expire, such that the claims made in his Notice of Objection are out of time?
 The objections of Mr. C. Iaboni that the trustee ‘excluded’ many valuable assets such as a mortgage, two businesses, a condo and life insurance policy from the estate of Lidia Iaboni and that when Lidia Iaboni became disabled, her husband’s wealth evaporated and the applicant has no interest in marshalling this wealth is, in part, a complaint about the administration of Umberto Iaboni’s affairs, between the onset of his disability in 2006 and his death in 2010 and latterly a complaint about the administration of his mother’s affairs between the onset of her disability in 2006/2007 and before her death in 2012. His allegations in the Notice of Objection filed in his mother’s estate, as outlined above were in substance the same as those made in the litigation he initiated on December 15, 2010. All of the transactions about which he complains were disclosed to him no later than the accounting delivered on behalf of his siblings pursuant to the Minutes of Settlement, with the possible exception of the discharge of the mortgage on his sister’s home, which was a matter of public record. His civil action was dismissed on May 15, 2013.
 It appears, therefore, that Mr. C. Iaboni’s Notice of Objection raises issues as particularized above that are outside of the 2-year period within which they may have been pursued.
The Court of Appeal upheld the decision:
 We are not persuaded that the motions judge made any error. The appellant consented to the passing of accounts from the time of the appointment of BNS, and has not appealed that aspect of the order. Even if the appellant were able to identify errors with respect to the abuse of process and Limitations Act claims, the motions judge’s findings of fact on the merits are fatal to the appeal. She made findings that the appellant had not substantiated his suspicions with respect to the discharge of mortgage, the share certificate, or general dissipation of funds. She also found the evidence of the respondent Norma to be credible and reliable. Those findings are entitled to deference and are dispositive of the appeal.
It is certainly arguable that this decision is determinative of the issue, even if the court determined it without analysis or acknowledgement that it is the subject of debate.
However, Matthew Furrow, who is a far greater authority on these issues than me, disagrees. He notes that really, all the Court held was that the facts were dispositive of the appeal, and not the limitations analysis. I think he’s right, which means uncertainty remains.