On September 12, 2024, the Ontario Court of Appeal released their decision in
Ingram v Kulynych Estate.[1] The Court considered which limitation period to apply to a constructive trust claim against an estate: the two-year limitation period under
s. 38(3) of the Trustee Act[2] or the ten-year limitation period under
s. 4 of the Real Property Limitations Act (“RPLA”)?[3] The Court ultimately allowed the appeal and concluded that the
Trustee Act applied to the equitable trust claim; as a result, the claim was statute-barred and dismissed.
Facts of the Kulynych Estate Case
Mr. Kulynych died in February 2017. Under his Will, prepared in 1989, he left his estate in its entirety to his first wife. If she predeceased him, which she did, then the estate would go to his three children. In July 2018, his daughter was appointed as estate trustee upon obtaining a certificate of appointment. The Will made no mention of Mr. Kulynych’s common law partner, Ms. Ingram, the respondent. Mr. Kulynych and Ms. Ingram had been in a relationship from 1999 until his death. Throughout this time, the respondent claimed that she provided financial, emotional, and medical support for the deceased. The estate was valued at approximately $690,000; the main asset was a house in Ajax that ultimately sold for $475,000. By March 2020, most of the estate was distributed to Mr. Kulynych’s children. Around $1,900 remained in the estate as a small holdback until July 2021, when the estate trustee then distributed that amount to herself. In March 2018, the respondent sent a demand letter to the estate, claiming that she was entitled to one-third of the total value of the estate for caring for Mr. Kulynych throughout their relationship. On March 10, 2021, three years later, and four years after Mr. Kulynych’s death, the respondent commenced an application against the estate for dependant support under the
Succession Law Reform Act[4] and a claim for constructive trust and unjust enrichment. In support of her equitable trust claim, the respondent stated that the deceased lived with her, thereby allowing him to rent out his house and accumulate value in his home.
Motion Decision
Upon receiving the claim, the estate trustee, the appellant in this decision, brought a Rule 21 motion in writing to have the respondent’s application dismissed as statute-barred, as it was brought more than two years after the death of the deceased, contrary to s. 38(3) of the
Trustee Act. Justice Jonathan Dawe, the motion judge, disagreed. Justice Dawe cited the Superior Court decision in
Wilkinson v The Estate of Linda Robinson,[5] which held that the ten-year limitation period under the
RPLA applied to equitable trust claims against estates. Moreover, Justice Dawe considered the equitable trust claim to be a property claim under s. 4 of the
RPLA, not a “wrong” committed by the deceased under
s. 38(2) of the Trustee Act.[6] As $1,900 remained in the estate at the time of the application, the motion judge also extended the six-month limitation period for dependant support claims under the
SLRA under s. 61(2), allowing the respondent’s dependant support claim to proceed. The respondent appealed the motion judge’s decision that the limitation period under the
RPLA applied.
Court of Appeal
The Court of Appeal allowed the appeal and concluded that the limitation period under the
Trustee Act applied; accordingly, the claim is statute-barred. Justice Roberts referred to the decision in
Bank of Montreal v Iskenderov[7] for the correct analytical approach to be applied in statutory interpretation regarding limitation periods. This approach requires that courts consider the following factors:
- the historical approach to the limitation periods in issue, including the legislative purpose of the limitation periods;
- the judicial approach to interpreting the limitation periods in question;
- the nature of the relief sought in the action; and
- the plain language of the statutory limitation provisions.[8]
Given that the motion judge did not have the benefit of
Iskenderov, his analysis focused on the “plain wording” of the statutory provisions. As a result, he did not “engage in a thorough review of the legislative history and purposes of the judicial treatment of s. 38 of the
Trustee Act, nor the relationship between related estate and family law statutory provisions” and the outcome of his analysis was different.[9] The Court began by looking to the legislative history and purpose of the two-year limitation period under section 38(3) of the
Trustee Act. Justice Roberts referred to
Waschkowski v Hopkinson Estate,[10] which held that the limitation period under s. 38(3) was a strict limit and the discoverability principle did not apply. Justice Roberts also reviewed the legislative purpose for limitation periods in estate matters, namely:
- the duty of estate trustees to administer estates promptly and diligently;
- the duty of estate trustees to ascertain the estate’s liabilities and debts as quickly as possible;
- the interest of finality in the administration of estates; and
- providing a remedy without creating indefinite fiscal vulnerability for an estate.[11] As stated by the Supreme Court of Canada in Ryan v Moore: “[a]n estate should not be held to ransom interminably by the advancement of claims which are not proceeded within a timely manner.”[12]
Moreover, Justice Roberts explained that the “wrong” described in s. 38(2) of the
Trustee Act “encompasses more than just tort claims against an estate and is not determined by the framing of the action pleaded or remedy claimed but by the nature of the claimed injury, regardless of how it is pleaded.”[13] Consequently, the underlying policy considerations for the limitation period under s. 38(3) described above applied to all claims that fall under s. 38(2) of the
Trustee Act. The Court them examined whether the respondent’s equitable trust claim fell within the scope of s. 38(2) of the
Trustee Act. Justice Roberts concluded that it did. Section 38(2) of the
Trustee Act applies “if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property.” As noted above, “wrongs” are not restricted to tortious conduct committed by a deceased, but all actionable wrongs for which the deceased may be liable. Unjust enrichment is a “wrong” under s. 38(2), as it requires a benefit, a corresponding deprivation, and
the absence of a juristic reason for the benefit and the loss.[14] The respondent’s equitable trust claim constitutes a “wrong” under section 38(2):
The respondent asserts that during their relationship, Mr. Kulynych financially benefited at her expense by living rent-free in her house while renting out his own house and retaining the rental income for himself. She alleges that Mr. Kulynych’s financial benefit at her expense amounts to an unjust enrichment in respect of which she seeks the imposition of a constructive trust over the entirety of the estate’s assets. In other words, the respondent claims that she has been wronged by Mr. Kulynych’s unjust enrichment (i.e., “at her expense”), which she seeks to have remedied by way of a constructive trust or a resulting trust.[15]
Next, the Court considered whether the respondent’s equitable trust claim also fell under s. 4 of the
RPLA and how to resolve the apparent conflict between the limitation period provisions under the
RPLA and the
Trustee Act. Justice Roberts turned to the legal principle of
generalia specialibus non-derogant, which provides that more specific legislation overrides general legislation if there is a conflict so that the two statutes can be read harmoniously.[16] The limitation period provisions in the
Trustee Act are more specific than those in the
RPLA; while the
Trustee Act solely applies to estates, the
RPLA applies to “an action to recover any land.”[17] Moreover, Justice Roberts concluded that the equitable trust claim was not an action to recover land, given that the claim was made in relation to all
estate assets, not Mr. Kulynych’s
property or compensation in lieu of property.[18]
Conclusions
The Court of Appeal concluded that the two-year limitation period under the
Trustee Act applies to equitable trust claims against estates. For the respondent, this meant that her claim for a constructive trust based on unjust enrichment against Mr. Kulynych’s estate was dismissed for not being made within 2 years of Mr. Kulynych's death. For other claimants with equitable trust claims against estates, this case underscores the importance of being aware of your rights and making claims in a timely manner. For lawyers, this case emphasizes the importance of erring on the side of caution when dealing with limitation periods in estate matters. For estate trustees, the Court of Appeal’s affirmation of the two-year limitation period provides them with clear guidance on the liability of an estate to such claims and allows them to fully administer the estate with confidence after two years have passed. If you have questions about equitable trust claims made against estates, please contact wills and estates lawyer,
Esther Abecassis, at 416-446-3310 or
esther.abecassis@devrylaw.ca. This blog was co-authored by Articling Student, Leslie Haddock.
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.
[1]
2024 ONCA 678 [
Kulynych Estate]. [2] RSO 1990, c T23,
s 38(3) [
Trustee Act]. [3] RSO 1990, c L15,
s 4 [
RPLA]. [4] RSO 1990, c S26,
s 58(1) [
SLRA]. [5]
2020 ONSC 91. [6]
Kulynych Estate, supra note 1 at para 13.
Section 38(2) of the
Trustee Act states that “[e]xcept in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.” [7]
2023 ONCA 528 [
Iskenderov]. [8]
Ibid at paras 13-16. [9]
Kulynych Estate, supra note 1 at para 22. [10]
2000 CanLII 5646 (ON CA) at para 8. [11]
Kulynych Estate, supra note 1 at paras 27-29. [12]
2005 SCC 38 at para 33. [13]
Kulynych Estate, supra note 1 at para 32. [14]
Ibid at para 51, citing
Kerr v Baranow, 2011 SCC 10 at para 31. [15]
Ibid at para 52. [16]
Ibid at para 55. [17]
Ibid at para 57. [18]
Ibid at para 60.
