Ontario: Court of Appeal says death is not a “condition”

In Lee v. Ponte, the Court of Appeal held that death does not trigger the application s. 7 of the Limitations Act.

Section 7 suspends the limitation period when the claimant “is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition”.  The appellant in Lee argued that this provision could extend the limitation period for an estate trustee to bring a claim that the deceased person had before death:

[5]         The appellant urges that s. 7 should be interpreted to apply when the person having the claim dies before commencing proceedings. He argues that a deceased person is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition. He submits that the same policy concerns for allowing additional time for a litigation guardian to be appointed and take over the management of the affairs of the incapable person apply to an estate trustee. He points out that it takes time for an estate trustee to review the affairs of the deceased, and to obtain probate.

The Court rejected this argument:

[6]         We are not persuaded the motion judge erred by dismissing the claim as statute barred. The grammatical and ordinary sense of the words of s. 7 are simply not elastic enough to apply to a deceased person and to construe an estate trustee to be a litigation guardian.

This is a very sensible response to a doubtful argument.  It’s plain that the Legislature didn’t intend that a “physical, mental or psychological condition” should be so broad as to encompass the condition of being dead.  Besides, it’s the Trustee Act that limits the pursuit of a deceased person’s claim.  The appellant didn’t rely on this provision, probably because it wouldn’t have helped, but it should be the starting point when considering the limitation of a deceased’s person claim.

Ontario: The capacity provisions of the Limitations Act

The decision in Hengeveld v. Ontario (Transportation) contains a rare consideration of the Limitation Act’s s. 7 capacity provision.  The issue was whether to add a defendant after the presumptive expiry of the limitation period, which meant it was unnecessary for the court to undertake a complete s. 7 analysis .  Still, it’s worth reviewing when considering capacity .

Ontario: time not suspended by a litigation guardian’s conflict of interest

The basic limitation period doesn’t run when the claimant is a minor or incapable person, except when the claimant is represented by a litigation guardian (see sections 6, 7, and 8 of the Limitations Act).

If the litigation guardian discovers that she has a conflict of interest, she must take steps to have a new litigation guardian appointed.  The conflict of interest will not suspend the running of the limitation period.

Per Justice Sweeny in Socha v. Peninsula Towing & Recovery:

 

[24]        The conflict of interest which is said to arise as a result of being named a defendant to a counterclaim cannot absolve a litigation guardian of his or her responsibilities to a minor. The conflict of interest may be seen as an indication that the litigation guardian has an“interest adverse” to the minor (see Murray v. Childrens Centre Thunder Bay & Murray, 2010 ONSC 845 (CanLII), at para. 25). However, the existence of a counter-claim or the potential liability of a parent has not precluded a parent from representing a minor as a next friend (the precursor to a litigation guardian) as was the case in Beckerson and Beckerson v. Dougherty, 1953 CanLII 129 (ON SC), [1953] O.R. 303.

[25]        In my view, a litigation guardian is not relieved of his or her duties to the minor or incapable person because he or she finds that his or her interest may be adverse. If that situation does arise, the litigation guardian should take steps to have a new litigation guardian appointed. The conflict should not have the effect of suspending the running of the limitation period.

Alberta: Trustees of a person under disability can delay commencing an action indefinitely (or at least for decades)

Section 5 of the Limitations Act suspends the operation of limitation periods during the time that a claimant is a “person under disability”. In Knibb v. The Carstairs Battle Cats, the Court of Appeal confirmed that “person under disability” includes a claimant for whom an order of trusteeship has granted a trustee power to commence and settle litigation. Such a trustee can, in theory, rely on section 5 to delay commencing an action indefinitely.

The case involved a motor vehicle accident in June 2004 (and not, as one might have hoped, battle cats). The defendant struck Knibb while driving and seriously injured him. The injuries left Knibb cognitively and physically disabled.

Knibb’s mother was appointed his guardian and trustee. She filed a Statement of Claim on Knibb’s behalf in May 2006 naming as defendants the driver and owner of the motor vehicle. In June 2008, the defendants filed a Third Party Notice alleging certain third parties contributed to Knibb’s injuries by over-serving him beer. The third parties applied for a summary trial to have the Third Party Notice dismissed on the basis that it was barred by the Limitations Act.

At trial, the parties agreed that Knibb was a “dependent adult” under the Dependant Adults Act and a “represented adult” under the Adult Guardianship and Trusteeship Act, and, accordingly, a “person under disability” as defined by section 1(h) of the Limitations Act:

“person under disability” means

(i)    a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act, or

(ii)    an adult who is unable to make reasonable judgments in respect of matters relating to a claim;

Section 5 of the Limitations Act provides as follows:

5(1)      The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.

(2)        The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section.

The third parties argued that the “claimant” in section 5 was Knibb’s mother and not Knibb himself. The trial judge rejected this argument.

On appeal, the appellants submitted that because the Limitations Act defines “claimant” as “the person who seeks the remedial order”, Knibb’s mother was the claimant because only she had authority and capacity to seek the remedial order. Knibb’s mother wasn’t disabled and so section 5 didn’t apply.

The appellants argued further that if section 5 does operate to suspend the limitation period during the time that a person under disability has a guardian, the guardian would be able to bring an action decades after the injury. The appellants characterised this as an “absurd” result contrary to the Limitations Act’s purpose of preventing belated actions.

The respondents submitted that Knibb, as the injured party, was the “claimant” as a matter of common sense and section 5 did apply. Moreover, if a guardian is the “claimant” under section 5, there is no situation in which the section would suspend the limitation period applicable to the claim of a person under disability. This is because it is the appointment of the guardian that defines the adult as “disabled” under section 1(h) (that is, to envoke section 5, the claimant must be a person under disability, and to be a person under disaility the claimant must have a guardian, and if a claimant has a guardian, by the appellants’ reasoning she is not a claimant under section 5).

The respondents also noted that the Limitations Act in other sections distinguishes between people who are and are not represented by guardians, such as in the case of a minor. If the Legislature had intended that guardians be included in the definition of “claimant”, it could have said so expressly.

The Court of Appeal accepted the respondents’ position:

We see no basis in the Limitation Act to hold that the “claimant” is anyone other than Knibb. This interpretation can arguably lead to undesirable consequences in that the commencement of an action could be delayed for years or perhaps decades. That said, given the express wording of the current Limitations Act and the complete absence of any provision analogous to section 59 of the former Limitations of Actions Act [which dealt with the situation where a trustee had been appointed for a person under disability, as discussed below], this interpretation is not “manifestly absurd, or extremely harsh, unjust, or capricious”.

The implication of this decision is that there is effectively no limitation period for claims arising from injuries suffered by persons under disability.

It’s also worth noting the Court of Appeal’s discussion of section 59 of the former Limitations of Actions of Act, the predecessor of section 5 of the Limitations Act. Section 59 provided as follows:

(1)  When a person entitled to bring an action to which this Part applies is under disability at the time the cause of action arises, he may commence the action at any time within 2 years from the date he ceases to be under disability.

(2)        Subsection (1) does not apply

(a) if the person under disability is a minor in the actual custody of a parent or guardian, or

(b) if the person under disability is a person in respect of whom

(i)   a committee is appointed under The Mentally Incapacitated Persons Act, or

(ii)   a guardianship order under the Dependent Adults Act is in effect and the guardianship order

(A)    appoints a plenary guardian
in respect of the person under disability, or

(B)      appoints a partial guardian who has capacity to commence an action.

The Alberta Law Reform Institute expressly rejected bringing section 59 forward into the new legislation:

We are familiar with too many cases in which a parent, a committee, or a guardian, as the case may be, has permitted a limitation period to expire without bringing a claim, to the serious prejudice of a person under disability. Hence we will not recommend that any provisions analogous to subsection (2) be included in the new Alberta Act.

The trial judge in Knibb took note of the incentive guardians have to commence actions promptly:

If a guardian did not bring an action in a reasonable time then they may suffer the consequences of being removed as guardian for instance. In any event, delay harms both parties – faded memories are not very helpful to the plaintiff who has the onus of proof.

This observation is rather at odds with the Alberta Law Reform Institute’s position.  It’s an unusual guardian that’s inexperienced enough to  allow a limitation period to expire, but has the sophistication to appreciate the impact of delay in litigation.  Regardless, one can’t fault the Court for looking to find some limit on what is otherwise a guardian’s absolute discretion to commence an action on behalf of a person under disability whenever she chooses.

Section 5 is in contrast to capacity provisions like section 7 of Ontario’s Limitations Act, 2002, which has a similar effect to the old section 59.  In Ontario, once the a litigation guardian is appointed, time begins to run for the person under disability’s claim.  This is an approach that is, on its face, more consistent with the basic purposes of limitations legislation–“certainty, evidentiary and diligence” (see the Supreme Court deceision in M.(K.) v. M.(H.) at para. 30).