Real Property (Limitations)

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Date Retrieved:	2024-04-25
CLNP Page ID:	281
Page Categories:	[Limitations]
Citation:	Real Property (Limitations), CLNP 281, <>, retrieved on 2024-04-25
Editor:	Sharvey
Last Updated:	2022/08/26

Wilkinson v. The Estate of Linda Robinson, 2020 ONSC 91 (CanLII)

[19] The position of the Estate that the Trustee Act is 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.

[20] While there is no doubt that section 38(3) of the Trustee Act is a hard limitation, there is no jurisprudence to demonstrate that the Real Property Limitations Act should not apply in cases of a constructive trust as has already been determined by the Court of Appeal in McConnell v. Huxtable.

[21] In Rolston v. Rolston, 2016 ONSC 2937, the Court was asked to consider whether the Plaintiff’s claim for constructive trust was barred by the limitation period in s.38(3) of the Trustee Act. 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 Trustee Act was intended to apply not only to tort actions, but to other “personal” actions. However he went on to note that the Trustee Act was entirely dependent on provisions of the Limitations Act, that the same legislation confirms that it does not apply to claims pursued in proceedings to which the Real Property Limitations Act applies and that as confirmed by the Court of Appeal in McConnell v. Huxtable, claims for unjust enrichment and associated remedies of constructive trust are governed by section 4 of the Real Property Limitations Act.

[22] The heading of the applicable section in the Trustee Act refers to claims in tort. This is not a tort claim. This is an action for an interest in property.

[23] A simple analysis is that the Real Property Limitations Act is dealing with a right to land, not with a wrong against a person. This case, as in McConnell v. Huxtable, deals with a right to property.

[24] I do not propose to differentiate between live parties and deceased parties. The Estate’s motion is therefore dismissed. Wilkinson’s motion is similarly dismissed.

Sterling Waterhouse Inc. v LMC Endocrinology Centres (Toronto) Ltd., 2015 ONSC 3987 (CanLII)

[36] In interpreting s. 17, I bear in mind the objectives of the Limitations Act, as described by Justice Mew in Pickering Square Inc., at para. 27:

With the enactment of the Limitations Act, the legislature created a single, comprehensive general limitations law that is to apply to all claims for injury, loss or damages except, in relevant part, when the RPLA specifically applies. [Citation omitted] Thus, the application of the Limitations Act should be construed broadly and the RPLA narrowly. [Emphasis added.]

[37] I conclude that s. 17 does not apply to the tort or oppression claims. To find that any claim where the damages are connected in some way to unpaid rent under s. 17 would extend s. 17 beyond claims that affect real property and undercut the general applicability of the Limitations Act: Pickering Square Inc., at para. 40; Bill Co. Incorporated, at para. 18; The Equitable Trust Company v. Marsig, at para. 30.

Real Property Limitations Act, R.S.O. 1990, c. L.15

4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4.

6 (1) If the person last entitled to any particular estate on which any future estate or interest was expectant has not been in the possession or receipt of the profits of the land, or in receipt of the rent, at the time when the person’s interest determined, no such entry or distress shall be made and no such action shall be brought by any person becoming entitled in possession to a future estate or interest but within ten years next after the time when the right to make an entry or distress, or to bring an action for the recovery of the land or rent, first accrued to the person whose interest has so determined, or within five years next after the time when the estate of the person becoming entitled in possession has become vested in possession, whichever of those two periods is the longer.

(2) If the right of any such person to make such entry or distress, or to bring any such action, has been barred, no person afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will or settlement executed or taking effect after the time when a right to make an entry or distress or to bring an action for the recovery of the land or rent, first accrued to the owner of the particular estate whose interest has so determined, shall make any entry or distress, or bring any action, to recover the land or rent.

15 At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

42 Where land or rent is vested in a trustee upon an express trust, the right of the beneficiary of the trust or a person claiming through the beneficiary to bring an action against the trustee or a person claiming through the trustee to recover the land or rent, shall be deemed to have first accrued, according to the meaning of this Act, at and not before the time at which the land or rent has been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through the purchaser.

Pioneer Corp. v. Godfrey, 2019 SCC 42 (CanLII)

[31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), (1986) 2 S.C.R. 147, at p. 224; Ryan, at paras. 2 and 22).

[32] This discoverability rule does not apply automatically to every limitation period. While a “rule”, it is not a universally applicable rule of limitations, but a rule of construction to aid in the interpretation of statutory limitation periods (Peixeiro v. Haberman, 1997 CanLII 325 (SCC), (1997) 3 S.C.R. 549, at para. 37). It can therefore be displaced by clear legislative language (Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415, (2007) 3 F.C.R. 245, at para. 333, aff’d 2009 SCC 9, (2009) 1 S.C.R. 222). In this regard, many provincial legislatures have chosen to enact statutory limitation periods that codify, limit or oust entirely discoverability’s application, particularly in connection with ultimate limitation periods (see e.g. Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4-5 and 15; Limitations Act, R.S.A. 2000, c. L-12, s. 3(1), Limitation Act, S.B.C. 2012, c. 13, ss. 6-8 and 21; The Limitations Act, S.S. 2004, c. L-16.1, ss. 5-7, Limitation of Actions Act, S.N.B. 2009, c. L-8.5, s. 5, Limitation of Actions Act, S.N.S. 2014 c. 35, s. 8; see also Bowes v. Edmonton (City), 2007 ABCA 347, 425 A.R. 123, at paras. 146-58).

[34] Two points flow from this statement. First, where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire ([Peixeiro, at para. 39).

[35] Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of the cause of action or which does not require the plaintiff’s knowledge of his or her injury, the rule of discoverability will not apply. In Ryan, for example, this Court held that discoverability did not apply to s. 5 of the Survival of Actions Act, R.S.N.L. 1990, c. S-32, which stated that an action against a deceased could not be brought after one year from the date of death. As the Court explained (para. 24):

The law does not permit resort to the judge-made discoverability rule when the limitation period is explicitly linked by the governing legislation to a fixed event unrelated to the injured party’s knowledge or the basis of the cause of action. [Emphasis added; citation omitted.]

By tying, then, the limitation period to an event unrelated to the cause of action, and which did not necessitate the plaintiff’s knowledge of an injury, the legislature had clearly displaced the discoverability rule (Ryan, at para. 27).

[36] In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. In Peixeiro, for example, this Court applied the discoverability rule to s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which stated that an action must be commenced within two years of the time when “damages were sustained” (para. 2). The use of the phrase “damages were sustained” rather than “when the cause of action arose” was a “distinction without a difference”, as it was unlikely that the legislature intended that the limitation period should run without the plaintiff’s knowledge (para. 38).

McConnell v. Huxtable, 2014 ONCA 86, 2014 CarswellOnt 1152

39. From the plain meaning of the words "action to recover any land" in section 4 of the Real Property Limitations Act, in their "entire context" as described above, I find that the applicant's claim in this case for an ownership interest in the house in question is an "action to recover any land" within the meaning of section 4 of the Real Property Limitations Act. It is subject to a ten year limitation period. Based on the record before me, it is not possible for me to conclude that the applicant's claim in this case is barred by the ten year limitation. Accordingly, this part of her claim is entitled to proceed.

Sinclair v. Harris, 2018 ONSC 5718, 2018 CarswellOnt 16149

22. The words "action to recover any land" in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost. Rather, "to recover any land" means simply "to obtain any land by judgment of the Court" and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust: Hartman Estate v. Hartfam Holdings Ltd., (2006) O.J. No. 69, at para. 56; McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 38 - 39.

28. The next issue is when the plaintiffs' right to recover the land first accrued. Here, it is the estate of Ms. Rock that is suing on the basis of the resulting trust. I find that there is no juridical reason to treat this distinction as a meaningful one in this context. In my view, the plaintiffs' right to bring an action accrued on the date that the resulting trust was created. In other words, on the date that Ms. Rock gave the defendants the monies to purchase the Beeton property, she could have brought an action for her interest in the property. The fact that she chose not to exercise it did not mean she did not have the right to bring an action for the return of her interest in the land on the day the resulting trust was created: McVan General Contracting Ltd. v. Arthur, (2002) O.J. No. 3336 (Ont. C.A.) at paras. 18-19.