Ruling shows flexibility for disabled persons

Lawyers say a recent Ontario Superior Court decision has implications for when a limitations period begins for applications brought on behalf of disabled people.

In Shaw v. Barber, Ontario Court Superior Justice James McNamara found a disabled woman’s application against the executor of her deceased common law spouse’s estate was not statute barred as a six-month limitations period did not come into effect until after a litigation guardian was appointed.

Lawyers say the decision is one of the first to deal with the issue of limitations periods when it comes to an application brought under the Succession Law Reform Act on behalf of a disabled person. They say the decision shows a willingness by the courts to be flexible when it comes to limitations periods in such matters.

“It’s not as if the courts are going to let the Limitations Act slide in general, but I think for the purposes of that section, it does show a willingness to be a bit more flexible,” says Alex Turner, of Bales Beall LLP, who was not involved in the case.

The applicant, Lois Shaw had lived with Frank Cyril Barber at the time of his death in August 2014, but the two were not married.

When he died, Barber left everything to his son. Shaw then brought an application under the Succession Law Reform Act against him on the basis of dependant’s relief and of constructive trust because of their joint ownership of their home.

A capacity assessment, conducted in February 2015, found that Shaw was “incapable of managing property” and that she was suffering from “longstanding cognitive limitations secondary to a developmental condition/delay.”

A copy of that assessment was then sent to the Office of the Public Guardian and Trustee, which then commenced an investigation.

The OPGT did not obtain outside counsel to bring the application until May 2016 and the claim was then issued in August 2016.

The decision turned on when the clock started on the limitations period.

The estate argued that as OPGT had become Shaw’s statutory guardian of property in February 2015, it had the power to commence an application on her behalf under the Succession Law Reform Act and that the six-month limitation period had, therefore, started to run.

The OPGT, however, contended that its appointment as guardian of property does not automatically make it a litigation guardian, as there had to be an investigation into whether there was a basis for litigation.

Under the Limitations Act, the limitations period does not start to run if the applicant or plaintiff is “incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition” and if a litigation guardian does not represent them.

“The six month limitation, then, did not run while Ms. Shaw was incapable of commencing a proceeding because of a mental condition and was not represented by a litigation guardian in relation to the claim,” McNamara said.

The estate argued that the limitations period should have begun after the OPGT was appointed as guardian of property as it had the authority to act as litigation guardian and start a claim on her behalf. McNamara, however, found that this view was flawed.

“There is no mechanism in the Limitations Act for the self-appointment of a litigation guardian,” he said.

The judge said that the Rules of Civil Procedure direct that the guardian “shall act as litigation guardian” but do not dictate “when that authority is to be exercised,” which he said happens when the guardian determines there is a basis for litigation.

McNamara added that starting publicly funded litigation requires thorough investigation beforehand.

“I agree with counsel that imposing a limitation period commencing as of the OPGT’s appointment as guardian of property is not only contrary [to] the wording of the Limitations Act, but would also create impossible timelines thus creating the potential for injustice being done to vulnerable individuals,” McNamara said.

Russel Molot, the lawyer who represented Shaw, says if there was ongoing litigation when the OPGT was appointed guardian of property, they would have automatically been appointed litigation guardian, but in Shaw’s case OPGT could not be considered as such until an affidavit was filed and litigation had commenced.

“I think that it sets out fairly clearly that there really isn’t a limitation period issue, unless there is an actual litigation guardian appointed. And the only time a litigation guardian can be appointed is if there is litigation,” says Molot, a lawyer with Langevin Morris Smith LLP.

“So for all intents and purposes, there is no longer a limitation period against anybody suffering from a disability until the action gets started.”

Mary Fraser, the lawyer for the estate and respondent, says the decision caught her client in the very circumstances that legislators meant to avoid by passing the Limitations Act. She says the act introduced a mechanism to make sure that parties could proceed with certainty and would not have to “wait in fear” of a claim being brought in an untimely way, even if brought by someone with a disability.

In the decision, McNamara said the defendant knew that OPGT was “looking into its options” concerning potential litigation shortly after its appointment as statutory guardian.

Fraser, however, says the estate trustee was not aware that Shaw had been issued a certificate of incapacity or that the OPGT was acting as her statutory guardian until eight months after the appointment.

“Normally, the trustee would have been safe in having distributed the estate as a result,” says Fraser, a partner with Johnson Fraser & March.

“Based on this decision, it would seem a trustee must be very careful because there is never any ‘safe’ time to proceed with the administration of an estate if the limitation for bringing a claim by an individual can potentially be suspended and the estate trustee is not aware of that person's status.”

McNamara also said the defendant was free to bring an application under s. 9(2) of the Limitations Act to try to have a litigation guardian appointed for Shaw at the time he became aware the OPGT had been appointed as statutory guardian. That section allows a party to bring a motion to have a litigation guardian appointed, which would have started the limitations period.

Fraser says the problem with s. 9(2) is that it does not serve a useful purpose unless the defendant is aware that a potential claimant is disabled.

“The mechanism which is provided to prevent possible prejudice cannot be employed if there is not awareness that a potential plaintiff is an individual who would fall within the scope of s. 6 or 7 of the Limitations Act,” she says.

Turner says the main takeaway from the decision is that estates need to take active steps if they want to force the issue of a limitation period when it comes to a dependant’s relief claim.

He adds that the decision shows courts are not going to go out of their way to put the OPGT in a situation where the public office has to do things in a certain amount of time.

“They’re going to look to the private litigants, which in this case is the estate, to advance their position as much as possible, before they’re going to make PGT do something in a certain period of time,” he says.

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