Ontario: there’s no limitation period for an application for a declaration of a codicil’s validity

 

In Piekut v. Romoli, the applicant sought a declaration as to whether codicils were valid. The respondent moved to dismiss the application as statute-barred. The court denied the motion on the basis that no limitation period applied pursuant to s. 16(1)(a), which prescribes no limitation period for a proceeding for a declaration if no consequential relief is sought.    The applicant was not seeking consequential relief:

[50]           I find that Helen’s question with respect to the validity of the codicils is restricted to declaratory relief. She is not seeking consequential relief. She is not asking the court to determine the ultimate beneficiary of Dundas St. properties or to vest the properties in any particular beneficiary or beneficiaries.

This is the correct outcome by the wrong reasoning.  No limitation period applied to the proceeding because it didn’t pursue a “claim”.  The Limitations Act applies to “claims” pursued in court proceeding (s. 2).  If there’s no “claim”, there’s no limitation period.  “Claims” derive from causes of action.  If there’s no cause of action, there’s no “claim”.

There’s no cause of action asserted in an application for a declaration regarding the validity of a codicil (or a will).  Accordingly, the applicants were not pursuing a “claim” in a court proceeding, and no limitation period applied to it.

Ontario: outcomes of a motion to add a presumptively out of time claim

In Howell v Jatheeskumar, Justice LeMay provides a helpful summary of the possible outcomes of an opposed motion to add a party to an action after the expiry of the presumptive limitation period:

[35]      When these cases are read together, it becomes clear that there are three possible outcomes to a motion such as this one.  First, the Court could determine that there was insufficient due diligence on the part of the Plaintiff and her counsel, and that there was no other to extend the time limits, thereby defeating any claim that the Plaintiff may have to extend the time limits as a result of the principles of discoverability.  Second, the Court could determine that there was a triable issue about the issues of discovery and whether the claim was timely as a result of the application of those principles.  This triable issue could include any question of whether there was any other Act by or under which the limitations period could be extended.  Finally, the Court could determine on the materials filed that there was clearly an issue of discoverability that made the claim timely.

In other news, expect quite a few updates in the coming days as we make up for a our lack of diligence in February and March.