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Limitation periods are a critical consideration for anyone bringing an estate claim in Ontario. Waiting too long to file a claim – and missing a crucial limitation period – can mean the difference between pursuing your claim and being forced to abandon it. However, it isn’t always clear which limitation period is applicable or when a claim is “discovered”, especially in the context of estate litigation. Below, we’ve provided a brief overview of limitation periods that estate claimants need to know about in Ontario, along with examples of estate-specific limitation periods.

Note that limitation periods are guided by legislation and case law, and determining when a limitation period begins can be a difficult task. If you have questions regarding a potential claim and its applicable limitation period, be sure to consult with an experienced estate lawyer as soon as possible.

What is a Limitation Period?

A limitation period is the time limit that a person has to start a claim against another person. Under Ontario’s Limitations Act, parties have a limited period of time in which to initiate a claim.

Section 4 of the Limitations Act provides for a “basic” two-year limitation period from the date a claim is discovered. If, for example, a person is injured by another party on October 22, 2022, and they decide to file a claim against the other party, they will need to file their claim by October 22, 2024.

When is a Claim “Discovered”?

The discovery of a claim can create some uncertainty for parties, especially when they are running up against a limitation period. Section 5 of the Limitations Act states that a claim is “discovered” on the earlier of:

  • The day that the person bringing the claim becomes aware of the injury, loss, damage, or other act that occurred; or
  • The day when “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to” above.

Are there Exceptions to the Two-Year Limitation Period Deadline?

The Limitations Act contains several exceptions to the two-year limitation period deadline.

For example, the limitation period does not run if the claimant is a minor and is not represented by a litigation guardian. Instead, the limitation period will start to run once the minor becomes an adult. Similarly, the limitation period does not run if the claimant is incapable of commencing a claim due to physical, mental, or psychological incapacity and is not represented by a litigation guardian.

It’s also worth noting that limitation periods in Ontario were suspended from March 16, 2020, to September 13, 2020, in response to the COVID-19 pandemic, which has impacted the calculation of limitation periods in Ontario.

What Happens if I Miss the Two-Year Limitation Period Deadline?

Theoretically, if you miss your two-year limitation period deadline, you will no longer be able to bring a claim against the other party. In Ontario, however, s. 15 of the Limitations Act provides an “ultimate limitation period”. This section states that a proceeding cannot be commenced after the 15th anniversary of the day on which the act on which a claim is based took place.

Despite the fact that this section does not explicitly permit an individual to bring a claim after the two-year limitation period has expired, it creates an ultimate claim deadline for bringing a claim (so, for instance, even if an act or omission occurred and the person bringing the claim did not learn about it until 16 years later, they would not be able to bring a claim).

Estate Litigation-Specific Limitation Periods in Ontario

While the Limitations Act provides a framework for determining limitation periods in Ontario, other statutes and even cases have created exceptions to this framework. Below, are some examples of the limitation periods for different types of estate claims in Ontario.

Challenging a Will:

Claimants challenging a will must comply with the two-year limitation period in the Limitations Act (Leibel v. Leibel, 2014 ONSC 4516).

Spousal Election:

A surviving spouse has the option to choose between accepting their entitlement in the will, or they can claim an “equalization payment” equal to what would have been available to them if their marriage ended in separation. However, this election must be made within six months of the spouse’s death (s. 6(1) of the Family Law Act).

Dependent Support:

Family members who were supported by the deceased during their lifetime, but did not receive “adequate” support in their will, can bring an application for support under the Succession Law Reform Act. Typically, a family member must bring their application within six months of the Certificate of Appointment of Estate Trustee being issued. However, the court has the discretion to extend this limitation period under s. 61(2) of the Succession Law Reform Act where it is appropriate to do so.

Trustee Act/Compensation for the Deceased:

Trustees can bring tort actions (or manage existing tort actions) on behalf of the deceased (for example, where the deceased was injured due to the negligence of another party before their death). These actions must be brought within two years of the deceased’s date of death (s. 38 of the Trustee Act).

As the different types of claims above demonstrate, not only does the length of the limitation period vary between claims, but the moment of “discoverability” also varies.

What Claimants Need to Know About Limitation Periods and Starting a Claim

Missing a limitation period can have devastating consequences for a claimant, and determining the applicable limitation period is not always easy. When facing a potential claim, regardless of the type of legal matter, it’s essential to act quickly.

It’s also critical to stay on top of processes and legal events concerning the estate. For example, knowing when a Certificate of Appointment of Estate Trustee was issued is critical for a family member who intends to bring a claim for dependent support. When managing an estate, there can be many moving parts, making it easy to overlook events that can affect a limitation period. The best way to ensure you aren’t missing important events or deadlines is to consult with an experienced estate lawyer as early as possible in the estate administration or estate litigation process.

Contact the Estate Litigation Lawyers at Derfel Estate Law for Effective Estate Litigation Representation

The Toronto estate lawyers at Derfel Estate Law represent clients in all manners of estate litigation and trusts disputes. We act for beneficiaries, guardians, executors, trustees, and others. We can help you protect your interests and proactively address any contentious issues or disputes before they escalate further.

Our Toronto estate lawyers work tirelessly to achieve the best possible resolution to your will, estate, or trust matter. We can help you determine whether you are eligible to bring such a claim, help you understand your options and rights, and represent you throughout the process. To find out how we can help, call us at 416-847-3580 or contact us online to schedule a consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.

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