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LIMITATION OF ACTIONS - Conflict between limitation periods - Which limitation period applies

Tuesday, July 25, 2017 @ 8:24 AM  

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Appeal by the estate of Father Crampton from the dismissal of its motion to have a cross-claim against it dismissed as statute-barred. Levesque alleged he was sexually assaulted by Father Crampton, in 1976, when he was 12 years old. Father Crampton pleaded guilty to indecent assault and was sentenced to eight months’ imprisonment. He died in 2010. Levesque and his family brought an action against Father Crampton’s estate and the Roman Catholic Episcopal Corporation of Ottawa (RCECO) in 2013. They claimed RCECO was vicariously liable for Father Crampton’s conduct, and had breached independent duties to Levesque. In 2014, RCECO issued a statement of defence and cross-claim against Father Crampton’s estate. Levesque and his family consented to the dismissal of their claim against the estate as statute-barred by a two-year limitation period in the Trustee Act. The estate moved to dismiss RCECO’s cross-claim. The motion judge determined he was bound by the Waterloo decision, in which it was held that defendants could bring a claim for contribution and indemnity against another defendant in circumstances in which the plaintiff’s right of action against that defendant was time-barred. He found that the Limitations Act, 2002, which provided that the two-year limitation period for commencing cross-claims started running when the action was commenced, trumped the two-year limitation period in the Trustee Act, which ran from the date of death of the wrongdoer. The issue on appeal was whether the motion judge correctly found that RCECO's crossclaim against the Crampton estate was not time-barred by s. 38(3) of the Trustee Act.

HELD: Appeal allowed. Both the Trustee Act and the Limitations Act, 2002, limitation periods applied and it was necessary for the Court to resolve the conflict. The Waterloo decision was not dispositive, as there was no conflict with the Trustee Act in that case. The purpose of the limitation period in the Trustee Act was to provide a remedy for a limited time against the estate of a deceased person, without indefinite fiscal vulnerability to the estate. By the terms of s. 19(4) of the Limitations Act, 2002, limitations provisions set out in the Schedule prevailed over the provisions of the Limitations Act, 2002. Despite several recommendations and legislative initiatives expressing concern over the Trustee Act limitation period, it had been expressly retained in the Schedule to the Limitations Act, 2002, reflecting a clear policy choice in favour of certainty and finality in estate matters after a fixed period of two years. Accordingly, the limitation period under s. 38(3) of the Trustee Act applied. The limitation period applicable to the crossclaim expired two years after the date of death of the tortfeasor from whom contribution or indemnity was sought. In certain circumstances, as was the case here, the application of the strict rule in the Trustee Act would result in a claim being time-barred before it was discovered. This harsh result could be mitigated in some cases by common law rules, such as the doctrine of fraudulent concealment, but no such remedy was available in the instant case.

Levesque v. Crampton Estate, [2017] O.J. No. 2866, Ontario Court of Appeal, G.R. Strathy C.J.O., E.E. Gillese and G.I. Pardu JJ.A., June 5, 2017. Digest No. TLD-July242017004