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RPLA - "Limitation where the subject interested" [s.4] (2). Thiessen v. Thiessen Estate
In Thiessen v. Thiessen Estate (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of an R21.01(1) ['Striking Pleadings - No Reasonable Cause of Action or Defence'], here where the issue was competing limitation regimes - RPLA and Trustee Act s.38(2):THE RELEVANT PROVISIONS IN THE STATUTES
[25] Section 38 of the Trustee Act reads as follows:Actions against executors and administrators for torts
(2) Except 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.
Limitation of actions
(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased. [Emphasis added.] [26] The two-year limitation period under s. 38(3) of the Trustee Act is a strict limit. The discoverability principle does not apply to actions under s. 38, and claims must be brought within two years of death, “[r]egardless of when the injuries occurred or matured into an actionable wrong”: Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.), at paras. 8, 16.
[27] Section 4 of the RPLA reads as follows: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. [Emphasis added.] ....
[29] He correctly recognized this court’s analytical approach for determining which limitation period governs when two conflicting provisions are at issue: see Bank of Montreal v. Iskenderov, 2023 ONCA 528, 168 O.R. (3d) 1, at para. 13; Ingram v. Kulynich Estate, 2024 ONCA 678, at para. 21.
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[41] Section 38(2) of the Trustee Act provides that in order for the Act to apply, the deceased must be liable for a wrong to the claimant or their property. A “wrong”, set out in s. 38(2), refers to all actionable wrongs for which the deceased may be liable: Smallman v. Moore, 1948 CanLII 4 (SCC), [1948] S.C.R. 295, at p. 298. ....
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[44] .... the claim originated in an alleged wrong committed by the deceased. The “wrong”, including both alleged breach of contract and resulting unjust enrichment, is encompassed by s. 38(2) of the Trustee Act: Ingram, at paras. 50-51; Smallman, at p. 298; Roth v. Weston Estate, 1997 CanLII 1125 (ON CA), 36 O.R. (3d) 513 (C.A.), at para. 6.
3. The Trustee Act applies
[45] The only claims against an estate that are not subject to the two-year limitation period under s. 38 of the Trustee Act are expressly set out in the RPLA: (i) “claims to recover land or rents in respect of express trusts of land or rents vested in a trustee” (emphasis added); (ii) the dower rights of a spouse against her spouse’s estate; and (iii) an action for arrears of dower (or resulting damages): RPLA, ss. 25, 26, 27and 42; Ingram, at para. 44.
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[48] .... equitable trust claims are not excepted from the Trustee Act. This court in Ingram noted at para. 45 that “it would have been a simple thing for the legislature to include equitable trust claims against an estate as an exception to s. 38 of the Trustee Act. It did not do so.” The court went on to state that, “[t]hese exceptions are just that – discrete, readily ascertainable exceptions to the legislative intent … to be subject to the two-year limitation period under s. 38(3).”
[49] Second, whether s. 38 of the Trustee Act applies depends on the nature of the injury, not the way the claim is framed or the remedy sought: Smallman v. Moore, 1948 CanLII 4 (SCC), [1948] S.C.R. 295 at p. 298.
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4. The RPLA Does Not Assist the Respondent
[53] Since Mr. Thiessen’s claim is covered by the Trustee Act, if it is also covered by the RPLA, the court must decide which of the Acts’ conflicting limitation periods applies.
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[55] The motion judge identified the correct analytical approach for determining which limitation period applies. This includes consideration of (i) the historical approach to the applicable limitation periods, including legislative purposes, (ii) the judicial approach to interpreting limitation periods, (iii) the nature of the relief sought, and (iv) the language of the statutes: Iskenderov, at para. 13; Ingram, at para. 21.
[56] The purpose behind the enactment of s. 38 of the Trustee Act is to encourage the timely and final disposition of estates. The two-year limitation period in the Trustee Act reflects the legislature’s intention to foster certainty and finality, avoid indefinite fiscal vulnerability for trustees, and assist trustees in administering estates expeditiously: Ingram, at para. 28; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, at para. 33; Appleyard v. Zealand, 2022 ONCA 570, 162 O.R. (3d) 494, at para. 60; Omiciuolo v. Pasco, 2008 ONCA 241, 90 O.R. (3d) 175, at para. 25; Waschkowski, at para. 9.
[57] Section 9(1) of the Estates Administration Act, R.S.O, 1990, c. E.22 reinforces this, providing that real property not sold, conveyed, or distributed by an estate trustee within three years of a person's death automatically vests in the beneficiaries entitled to it: Ingram, at para. 59.
[58] These provisions reflect the long-established duty of estate trustees to assess estate liabilities and debts as soon as possible, administer estates expeditiously, and ensure finality for estate matters in a manner consistent with the interests of justice.
[59] This court’s decision in Ingram involved similar facts and identical competing limitation periods.
[60] In Ingram, Roberts J.A. held that the inapplicability of the discovery principle and the clear two-year limitation period under the Trustee Act demonstrate the legislators’ intent that actions against estates arising from actions of the deceased be subject to a shorter limitation period: Ingram, at para. 27. She held that “the underlying policy considerations for a two-year limitation period apply to all estate claims captured under s. 38(2) of the Trustee Act” (emphasis added). The sole exceptions are those specifically contemplated in legislation: Ingram, at paras. 32 and 41-42.
[61] In considering the legislative history of the Trustee Act and the RPLA, this court in Ingram applied the principle of statutory interpretation generalia specialibus non derogant, which means that a specific provision overrides a general provision: Ingram, at paras. 55-59. The court therefore found that specific provisions governing estate claims in the Trustee Act should override the more general provisions concerning all claims against property in the RPLA. Finding otherwise would ignore the clear legislative intent underlying the Trustee Act.
[62] As noted by the respondent, it is true that in Ingram, this court found that the respondent’s equitable trust claim was not “an action to recover any land” within the meaning of s. 4 of the RPLA, because the respondent’s claim was “in relation to the estate assets and not in relation to [the deceased’s] real property”: para 60. This distinction differentiates this case from Ingram.
[63] However, this court’s Iskenderov analysis in Ingram specifically considered “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”: para. 55. While there may not have been such a conflict in Ingram, the analysis nonetheless applies. Absent a specific legislative exception, the limitation period in s. 38 of the Trustee Act governs all claims made against estates arising from wrongs for which the deceased was liable, even where the RPLA may also apply.
[64] As a result, the Trustee Act, and not the RPLA, applies to bar Mr. Thiessen’s claim.
5. The cases brought forward by the respondent are distinguishable
[65] The respondent relies on this court’s decision in Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, 80 R.P.R. (5th) 173, at para. 32, in support of his claim that s. 4 of the RPLA applies. In that case, the court held that: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. [Emphasis added; citations omitted.] [66] As such, claims based on unjust enrichment in which a party seeks a remedial constructive trust qualify as “actions to recover land” within the meaning of s. 4 of the RPLA.
[67] However, Waterstone, like McConnell and Gomes (which the respondent also cites, and which were relied on by the motion judge), did not involve claims against estates that were also covered by the Trustee Act. While the RPLA applied in those cases, the Trustee Act did not. As a result, the conflict between the two was not considered.
[68] This case is different. The question here is not whether the RPLA limitation period would have applied to Mr. Thiessen’s claim outside the estates context. It is rather, whether the RPLA still applies when the Trustee Act limitation period also applies.
[69] As I have explained, it does not. Other courts considering Ingram have found the same: O’Neill Estate v. Cahill, 2026 ONSC 1176, at paras. 26-29; Sewerynek et al. v. Pawlina et al. (January 7, 2026), Brampton, CV-22-00001441 (Ont. S.C.), at paras 11-12, leave to appeal to Ont. C.A. requested, M57392; Sparovec v. Smith et al., 2025 ONSC 6530, at paras. 112-118.
CONCLUSION
[70] The limitation period in s. 38(3) of the Trustee Act applies to “all actionable wrongs that wrong a claimant and for which the deceased may be found liable”: Ingram, at para. 50. The limitation period for such claims against estates, even claims involving land, is two years after the death of a deceased.
[71] Mr. Thiessen’s claim plainly falls within the bounds of the Trustee Act and is outside of its exceptions.
[72] Where both the Trustee Act and the RPLA contain applicable provisions, the specificity and legislative history of the Trustee Act dictate that its two-year limitation period applies. Mr. Thiessen’s claim was statute-barred. I would therefore allow this ground of appeal.
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