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RPLA - "Limitation where the subject interested" [s.4]. Sidhu v. Jain
In Sidhu v. Jain (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where the "motion judge consolidated two actions and dismissed a summary judgment motion, finding that one of the actions was governed by the Real Property Limitations Act".
Here the court considered whether RPLA s.4 or the Limitations Act applied to the case facts:Is the Plaintiff’s action statute barred?
[7] In this case the motion judge set out the issue and the law:[24] Section 4 of the Real Property Limitations Act (RPLA) States: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 accrue 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. [25] Section 23 of the RPLA states:23. (1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given R.S.O. 1990, c. L.15, s. 23 (1).
[Emphasis in original removed.] [8] The motion judge applied the law this way:[29] In 2006, Mrs. Sidhu agreed to purchase a one-third interest in the land known by the parties as Lot 16. Mr. Jain sold Lot 16 in 2016 without Mrs. Sidhu’s knowledge and without her knowing what he did with the net proceeds of sale. When questioned during Discovery, he refused to answer questions relating to the net proceeds of sale of Lot 16. In 2024, Mrs. Sidhu filed a claim against Mr. Jain seeking damages for the unilateral sale of Lot 16.
[30] Is Mrs. Sidhu’s 2024 action statute barred, as claimed by Mr. Jain’s counsel because it was initiated 8 years after 2016? In my view, the applicable statute is the Real Property Limitation Act (“RPLA”) rather than the Limitations Act, 2002. The former relates to land while the latter relates to a claim to remedy an injury loss or damage that occurred as a result of an act or omission. Arguably, this latter definition is broad enough to cover the loss of an interest in land. However, section 4 of the Limitations Act specifically states that the Act applies unless some other limitation periods is prescribed.
[31] In my view, section 4 of the RPLA applies given that it relates to the issue of land. Section 42 of the RPLA states that a party can make a claim under there when property is sold: see Khan v. Taji, 2020 ONSC 6704, at paras. 57-77. [9] The question before me is whether the limitations defence under the RPLA has been decided against the appellants. It plainly has. In the consolidated action going forward, that limitation defence is gone and cannot be raised again by the appellants. Accordingly, in line with Ball, the order under appeal is a final order and this court has jurisdiction: See also R.S. v. R.H. (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 21. . 6971971 Canada Inc. v. Messica
In 6971971 Canada Inc. v. Messica (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the order of the application judge who granted the respondents’ application and dismissed the appellant’s cross-application", this relating to a commercial L&T assignment consent dispute.
Here the court considered a LA v RPLA application issue:[12] Second, the appellant submits that the application judge erred in finding that the two-year period in the Limitations Act governed the cross-application rather than the ten-year period set out in s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”).
[13] We disagree with the appellant’s submission. Although there was a charge registered on Mr. Rahman’s property, the fact that real property is incidentally involved does not necessarily mean that the appellant’s cross-application was governed by the RPLA: Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, at para. 51. The application judge found that the substance of the appellant’s claim was damages for breach of contract set out in the lease renewal agreement. He held that this was not an action that affected real property or one that related to an interest in land. We see no basis to interfere with this conclusion. Accordingly, the cross-application was barred by the two-year limitation period in the Limitations Act. . Gomes v. Da Silva
In Gomes v. Da Silva (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here from an order which dismissed a "claim for a resulting trust and grant[ed] the respondents’ claim for partition and sale".
Here the court comments on RPLA limitations law [s.4 'Limitation where the subject interested'], as it bears on commencing a claim for resulting trust:[12] The trial judge correctly stated that s. 4 of the RPLA creates a ten-year limitation period for “an action to recover any land”. This includes claims advanced by way of resulting or constructive trust. She held that even if the parties’ mother held her interest in the property on a resulting trust for the appellant, the limitation period would have expired in 2018, ten years after her correspondence that put the appellant on notice regarding her view of the ownership of the home, and well before the appellant filed his statement of defence and counterclaim in December 2019. The trial judge found that, “[the appellant] had knowledge starting in 2008 that Maria da Silva did not have the intention to honour such a trust”, if indeed there was one. He referred in his 2008 letter to “taking appropriate action” but chose not to enforce his alleged rights. The trial judge correctly concluded that the appellant’s choice not to take steps in 2008 to assert his property claim did not stop the running of the limitation period. . Ingram v. Kulynych Estate
In Ingram v. Kulynych Estate (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from an estates application, here in a dispute over whether the RPLA s.4 or Trustee Act s.38(3) determined an equitable trust limitation period, as a matter of statutory interpretation:[44] I note three express exceptions in relation to estates under the RPLA to the two-year limitation period under s. 38(3). The respondent highlights the ten-year limitation period prescribed under s. 42 of the RPLA for claims to recover land or rents in respect of express trusts of land or rent vested in a trustee. I also note ss. 25 and 26 of the RPLA that set out a ten-year limitation period commencing at the death of the husband for an action of dower brought by a married woman against her husband’s estate. Finally, s. 27 of the RPLA relatedly prescribes a six-year limitation period for an action for arrears of dower or any damages on account of such arrears.
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(e) Does the respondent’s equitable trust claim also fall under s. 4 of the RPLA?
[53] That the respondent’s equitable trust claim falls within s. 38(2) of the Trustee Act is not the end of the required analysis. In applying the presumption of coherence in statutory interpretation, I must also consider whether the inclusion of equitable trust claims under s. 38(2) for the purpose of s. 38(3) of the Trustee Act can stand together with s. 4 of the RPLA.
[54] In my view, it can.
[55] In the circumstance of an apparent conflict between the specific provisions of s. 38 of the Trustee Act and the general provisions of s. 4 of the RPLA as to which limitation period applies to equitable trust claim against estates, the well-recognized principle of statutory interpretation generalia specialibus non derogant applies. This principle provides that special or more specific legislation overrides general legislation in the case of a conflict on the same subject so that the two statutes are brought into harmony: R. v. Greenwood (1992), 1992 CanLII 7750 (ON CA), 7 O.R. (3d) 1 (C.A.), at p. 7. See also: Bhuthal v. Sahsi, 2024 BCCA 73, at paras. 17, 18; Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, 140 O.R. (3d) 241, at paras. 62-64; 792266 Ontario Ltd. v. Monarch Trust Co. (Liquidator of), 1996 CanLII 4016 (ON CA), [1996] O.J. No. 3913 (C.A.), at para. 16; York (Township) v. North York (Township) (1925), 57 O.R. 644 (C.A.), at pp. 648-649. As this court instructed in Greenwood, at p. 7, “[t]he question of what constitutes special legislation as opposed to general legislation must, in itself, be a matter of construction involving a careful examination of the overall schemes of the two pieces of legislation to determine Parliament’s intention.”
[56] Applying this test, having regard to the language, the legislative history and purposes, and judicial treatment of ss. 38(2) and (3) of the Trustee Act, I conclude that those provisions are more specific than s. 4 of the RPLA and are intended to apply to equitable trust claims against estates.
[57] In contrast, s. 4 of the RPLA is general and does not refer to estate proceedings. Section 4 provides as follows: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. [Emphasis added.] [58] Interpreting s. 4 of the RPLA to include equitable trust claims against estates ignores the language, legislative history, purpose, and judicial treatment of s. 38 of the Trustee Act. It also requires the inclusion of language that the legislature did not intend. Moreover, this interpretation would be inconsistent with the overarching interests of justice that estates be efficiently and quickly administered.
[59] This latter goal is reflected in the provisions for the timely administration of estate assets under the Estates Administration Act, R.S.O. 1990, c. E.22 (“EAA”). In particular, s. 9(1) of the EEA undercuts the suggestion that the longer ten-year limitation period under s. 4 of the RPLA was intended to apply to equitable trust claims against estates. Under s. 9(1) of the EEA, in the absence of a registered caution, all real property not disposed of within three years of the deceased’s death automatically vests, without any conveyance by the deceased’s personal representative, in the persons beneficially entitled to it under the deceased’s will or upon his or her intestacy.
[60] Is the respondent’s equitable trust claim against the appellants “an action to recover any land”? In my view, it is not. This is because the nature of the respondent’s equitable trust claim is in relation to the estate assets and not in relation to Mr. Kulynych’s real property. As earlier referenced, the respondent’s claim for relief is for: “An order that [the respondent] is entitled to an interest in the Estate by virtue of Constructive Trust and Resulting Trust in relation to all estate assets on the basis of contribution or money’s worth” (emphasis added). The fact that the respondent is claiming, based on an unjust enrichment, an interest in all the estate’s assets, beyond the deceased’s real property, indicates that this is an estate claim that clearly falls within s. 38(2) of the Trustee Act and not a claim to recover property or money compensation in lieu of property.
[61] The respondent’s equitable trust claim crystallized on the death of Mr. Kulynych. At that point, Mr. Kulynych’s assets became the estate’s assets and vested in his executrix: see s. 2(1) of the EAA. Moreover, the respondent’s equitable trust claim is not in the nature of the exceptions earlier noted of an express trust claim, a dower right or a statutory entitlement. It is a claim in relation to Mr. Kulynych’s assets that have devolved to his estate.
[62] The respondent submits that the outcome of this appeal is governed by this court’s decision in McConnell that equitable trust claims are subject to the ten-year limitation period under s. 4 of the RPLA. In my view, McConnell does not assist the respondent because it did not involve a claim against the estate of a deceased person. As earlier discussed, the legislative history and purpose of s. 38 of the Trustee Act and its judicial treatment distinguish claims against and by an estate from claims unrelated to estates. Unless specifically exempted, the legislature clearly intended that equitable trust claims against an estate should fall within s. 38(2) and be subject to the two-year limitation period under s. 38(3) of the Trustee Act.
[63] The respondent also relies, as did the motion judge, on the decision of the Superior Court in Wilkinson. In Wilkinson, the claimant was the common law spouse of the deceased who owned the house in which the parties lived. The deceased’s will allowed the claimant to live in the house for two years following her death, after which time the house was to be sold and the proceeds would form part of the residue of her estate that she left to her three children. The claimant commenced an application against the estate in which he asked for a declaration that he had a constructive trust as to an equal interest in the property.
[64] The motion judge in Wilkinson relied on this court’s decision in McConnell in considering the “plain meaning” of s. 4 of the RPLA. He reasoned that as the heading of the applicable section in the Trustee Act refers to claims in tort and the claimant’s claim was not a tort but for an interest in property, s. 38 of the Trustee Act did not apply: at para. 22. He determined that “[a] simple analysis is that the [RPLA] is dealing with a right to land, not with a wrong against a person”: at para. 23. He concluded that there was no jurisprudence to demonstrate that the RPLA should not apply in cases of a constructive trust as has already been determined in McConnell. Without further explanation, he did not propose to differentiate between claims against live parties and those against estates.
[65] In my view, Wilkinson is wrongly decided. The motion judge in Wilkinson did not carry out the required analysis of the legislative history and policy and judicial treatment of s. 38 of the Trustee Act and related statutory provisions that I have already referenced. Moreover, as I have already explained, his reading of the provisions of s. 38(2) and (3) of the Trustee Act was in error. Finally, his reliance on McConnell was misplaced because McConnell does not apply to equitable trust claims against estates. . Bank of Montreal v. Iskenderov
In Bank of Montreal v. Iskenderov (Ont CA, 2023) the Court of Appeal considered (and allowed) an appeal where the trial judge held that a ten-year s.4 ["Limitation where the subject interested"] RPLA limitation applied, rather than the general two-year limitations period:[1] The respondent bank, a creditor of Roufat Iskenderov, the appellant, sought to set aside as a fraudulent conveyance, Mr. Iskenderov’s transfer of his residence to his wife, the appellant, Elena Lazareva. The action was commenced more than two years but less than ten years after the transfer. The appellants’ position was that the claim was statute barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, but the motion judge found that the ten-year limitation period under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”), applied, and that the claim was brought in time and could proceed.
[2] That finding followed this court’s decision in Anisman v. Drabinsky, 2021 ONCA 120 (“Anisman (ONCA)”). On appeal, the appellants sought to argue that Anisman (ONCA) was not a binding authority of this court because full reasons were not given and it was wrong in law, and that this court should find that the two-year limitation period under the Limitations Act, 2002 applied to the subject action. The court heard the appeal with a five-judge panel in order to be able to fully address the legal issue of which limitation statute and which limitation period applies to an action to set aside a fraudulent conveyance of real property (a “fraudulent conveyance action”).
[3] For the reasons that follow, I would allow the appeal. Anisman (ONCA) was decided without the benefit of the relevant historical authority. The ten-year limitation period in s. 4 of the RPLA does not apply to an action to declare a fraudulent conveyance of real property void as against creditors under s. 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29. Instead, the two-year limitation period from the date the claim was discovered under s. 4 of the Limitations Act, 2002 applies.
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[8] On issue one, the motion judge reviewed the conflicting case law in the Ontario Superior Court of Justice on the issue of which limitation period applies to a claim to set aside a transfer of real property as a fraudulent conveyance, but rejected the submission that he was not bound by this court’s decision in Anisman (ONCA) that the RPLA and not the Limitations Act, 2002 applies. He therefore found that the ten-year limitation period in the RPLA applies and the action was commenced well within that time.
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[12] The appellants raise three issues on the appeal: 1) Did the motion judge err in law by following Anisman (ONCA) for the principle that the RPLA ten-year limitation period rather than the Limitations Act, 2002 two-year limitation period applies to an action to declare a fraudulent conveyance of real property void as against creditors? .... The court extensively considers [at paras 13-56] the RPLA-Limitations Act competing issue, deciding that RPLA s.4 does not apply to fraudulent conveyances.
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