{"id":1085,"date":"2020-05-30T15:33:38","date_gmt":"2020-05-30T19:33:38","guid":{"rendered":"http:\/\/limitations.ca\/?p=1085"},"modified":"2020-05-30T15:33:38","modified_gmt":"2020-05-30T19:33:38","slug":"ontario-the-trustee-act-doesnt-supersede-the-rpla","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1085","title":{"rendered":"Ontario: the Trustee Act doesn’t supersede the RPLA"},"content":{"rendered":"

Wilkinson v. The Estate of Linda Robinson<\/em><\/a> is a reminder that the Trustee Act <\/em><\/a>does not supersede the RPLA<\/a>.\u00a0 An estate\u2019s claim for the recovery of an interest in real property is subject to the RPLA, not the Trustee Act<\/em>:<\/p>\n

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[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The position of the Estate that the\u00a0Trustee Act<\/i>\u00a0is an absolute bar to the constructive trust claim is not borne out by the prior cases or by the legislation. The Estate takes the position that if the parties were alive, the ten-year rule would apply, but since the death of Robinson, the limitation period becomes two years.<\/p>\n

\u00a0[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0While there is no doubt that section 38(3) of the\u00a0Trustee Act<\/i>\u00a0is a hard limitation, there is no jurisprudence to demonstrate that the\u00a0Real Property Limitations Act<\/a><\/i>\u00a0should not apply in cases of a constructive trust as has already been determined by the Court of Appeal in\u00a0McConnell v. Huxtable<\/i>.<\/div>\n
\u00a0[<\/a>21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Rolston v. Rolston<\/i>,\u00a02016 ONSC 2937<\/span><\/a><\/span>, the Court was asked to consider whether the Plaintiff\u2019s claim for constructive trust was barred by the limitation period in s.38(3) of the\u00a0Trustee Act<\/i>. The claims were brought some seven years after the date of death. In considering what limitation period would apply to actions for unjust enrichment seeking a remedial constructive trust, Leach J., accepted at paras 58 and 59 that section 38 of the\u00a0Trustee Act<\/i>\u00a0was intended to apply not only to tort actions, but to other \u201cpersonal\u201d actions. However he went on to note that the\u00a0Trustee Act<\/i>\u00a0was entirely dependent on provisions of the\u00a0Limitations Act<\/i>, that the same legislation confirms that it does not apply to claims pursued in proceedings to which the\u00a0Real Property Limitations Act<\/a>\u00a0<\/i>applies and that as confirmed by the Court of Appeal in\u00a0McConnell v. Huxtable<\/i>,\u00a0<\/i>claims for unjust enrichment and associated remedies of constructive trust are governed by\u00a0section 4<\/a>\u00a0of the\u00a0Real Property Limitations Act<\/a>.<\/i><\/div>\n
\u00a0[<\/a>22]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The heading of the applicable section in the\u00a0Trustee Act<\/i>\u00a0refers to claims in tort. This is not a tort claim. This is an action for an interest in property.<\/div>\n
\u00a0[<\/a>23]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0A simple analysis is that the\u00a0Real Property Limitations Act<\/a><\/i>\u00a0is dealing with a right to land, not with a wrong against a person. This case, as in\u00a0McConnell v. Huxtable<\/i>,<\/i>\u00a0deals with a right to property.<\/div>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Wilkinson v. The Estate of Linda Robinson is a reminder that the Trustee Act does not supersede the RPLA.\u00a0 An estate\u2019s claim for the recovery of an interest in real property is subject to the RPLA, not the Trustee Act: [19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The position of the Estate that the\u00a0Trustee Act\u00a0is an absolute bar to … Continue reading Ontario: the Trustee Act doesn’t supersede the RPLA<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[6,265,345,141,597],"class_list":["post-1085","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-estates","tag-ontario-real-property-limitations-act","tag-ontario-real-property-limitations-act-s-4","tag-ontario-trustee-act-s-38","tag-recovering-real-property"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1085","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1085"}],"version-history":[{"count":1,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1085\/revisions"}],"predecessor-version":[{"id":1086,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1085\/revisions\/1086"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1085"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1085"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1085"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}