Ontario Superior Court Takes Flexible Approach to Limitation Periods in Relation to Claims by Vulnerable Persons

22 January 2018

By Shakaira John
The Ontario Superior Court has made an important statement about limitation periods in relation to litigation guardians. In Shaw v. Barber, an application was brought by the Office of the Public Guardian and Trustee (“OPGT”) on behalf of an incapable woman for support under the Succession Law Reform Act (“SLRA”). The court’s decision clarified that limitation periods do not begin to run against an incapable person from the day that the OPGT becomes the statutory guardian of property, but rather, from the day the OPGT decides to act as litigation guardian.

Background: Lois Shaw, the applicant and incapable person, was living with Frank Cyril Barber when he died in August 2014. In his will, Barber named his son as the executor and sole beneficiary of his estate.

The OPGT became the applicant’s statutory of guardian of property pursuant to section 16(5) of the Substitute Decisions Act, 1992, on February 25, 2015, upon receipt of the certificate of incapacity for Ms. Shaw.

Upon becoming the property guardian, the OPGT commenced an investigation, but did not retain outside counsel to bring Ms. Shaw’s application until May 2016. The claim was issued on August 5, 2016.

The respondent brought a motion, arguing that the applicable six-month limitation period began to run in February 2015 when the OPGT became Ms. Shaw’s statutory guardian of property. The OPGT took the position that its statutory appointment as guardian of property does not automatically make the OPGT a litigation guardian and, accordingly, the limitation period does not begin to run at that time.

A Guardian of Property is not Automatically a Litigation Guardian: The Rules of Civil Procedure direct that a guardian of property “shall act as litigation guardian”, but do not dictate when that authority is to be exercised. According to the Shaw decision, this occurs when the guardian has determined that there is a basis for exercising their authority in that role (i.e. after conducting a “thorough investigation” into the facts and legal options available). Such investigations can be a time consuming process because there are usually information gaps because of the client’s incapacity and the need to verify any third party information obtained during the course of the investigation.

Justice McNamara concluded that imposing a limitation period from the date the OPGT becomes the guardian of property is contrary to the Limitations Act, 2002, which states that a limitation does not run during any time in which an incapable person is not represented by a litigation guardian, and, given that publicly funded litigation requires a thorough investigation prior to commencing an action, would create impossible timelines. This would create the potential for injustice to vulnerable individuals.

In reaching this conclusion, Justice McNamara noted that the respondent had not been prejudiced by the delay in any way. Rather, the respondent was aware that the OPGT was considering its options, including a claim against the estate. In the circumstances, the respondent could have brought an application to have a litigation guardian appointed.

It is not clear whether the outcome would have been affected if the respondent had been prejudiced by the delay and, if so, how. However, another recent limitations decision suggests that the court need not give effect to any prejudice suffered from the expiration of a limitation period, if the responding party could or should have taken steps itself within the limitation period, but failed to do so.

The Takeaway: The Shaw decision is a notable precedent for the principle that a guardian of property does not automatically become a litigation guardian and, therefore, the limitation period does not begin to run against the incapable person from the day that the OPGT becomes his/her statutory guardian of property. Rather, the limitation period will not begin to run until after the guardian has determined, even through a lengthy, time-consuming investigation, that there is a basis for a claim.

While heralded by some as an example of flexibility to accommodate and protect vulnerable persons, the Shaw decision has also been criticized as essentially allowing the OPGT (and potentially other litigation guardians) to determine the commencement of its own limitation periods. In this way, the decision appears to run contrary to the very purposes of a limitation period: ensuring that plaintiffs pursue their claims with reasonable diligence, and defining with certainty the time at which potential defendants may be free of ancient liability. As one commentator noted: “[s]o for all intents and purposes, there is no longer a limitation period against anybody suffering from a disability until the action gets started.”

The decision also appears to place the burden on potential defendants to take active steps to have a litigation guardian appointed, in order to rely on a limitation period in a claim by an incapable person. However, the mechanisms under the Rules to appoint a litigation guardian will not assist where the respondent is not aware of a potential claim by an incapacitated person, or is not aware of the potential claimant’s incapacity.

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