



COURT OF APPEAL FOR ONTARIO

CITATION: Lee v. Ponte, 2018 ONCA 1021

DATE: 20181213

DOCKET: C64794

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Orlena Lee, in her capacity as Estate Trustee for
    the Estate of Shui Yee Lee, Deceased

Plaintiff (Appellant)

and

Cesar Ponte

Defendant (Respondent)

Howard Markowitz, for the appellant

Patrick J. Morrissey, for the respondent

Heard: December 7, 2018

On appeal from the judgment of Justice Arthur M. Gans of
    the Superior Court of Justice, dated November 30, 2017.

REASONS FOR DECISION

[1]

The issue on appeal is whether s. 7 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24 applies to extend the time within which an estate trustee can
    bring a claim that the deceased person had before death.

[2]

In 2007, the deceased person Shui Lee had loaned the respondent $55,000.00
    secured by a promissory note payable on demand or upon the sale of a specified
    piece of property, whichever occurred first. The trial judge found the limitations
    period began to run on June 6, 2013 when Shui Lee became aware the property had
    been sold. The estate trustee of Shui Lee made a demand in May 2015 and then
    commenced an action on July 17, 2015. The motion judge found the action was
    statute barred because it was commenced more than two years after June 6, 2013
    and dismissed the claim on summary judgment.

[3]

On appeal, the appellant submits that s. 7 of the
Limitations Act
applies to extend the limitation period by six months for the estate trustees
    action. Section 7(1) of the
Limitations Act

provides:

7 (1) The limitation period established by section 4
    does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in
    respect of the claim because of his or her physical, mental or psychological
    condition; and

(b) is not represented by a litigation guardian in
    relation to the claim.

Presumption

(2) A person shall be presumed to have been capable
    of commencing a proceeding in respect of a claim at all times unless the
    contrary is proved.

Extension

(3) If the running of a limitation period is
    postponed or suspended under this section and the period has less than six
    months to run when the postponement or suspension ends, the period is extended
    to include the day that is six months after the day on which the postponement
    or suspension ends.

[4]

The appellant submits that this provision should be liberally construed.
    In
Papamonolopoulos v. Toronto (City) Board of Education
, [1987] 75
    O.R. (2d) 388 (leave to SCC denied), Brooke J.A. said:

I think the provisions of a
    statute of limitations should be liberally construed in favour of the
    individual whose right to sue for compensation is in question. Where two
    interpretations of the statute are possible, reason favours the one which
    enables the plaintiff to bring his action

[5]

The appellant urges that s. 7 should be interpreted to apply when the
    person having the claim dies before commencing proceedings. He argues that a
    deceased person is incapable of commencing a proceeding in respect of the claim
    because of his or her physical, mental or psychological condition. He submits
    that the same policy concerns for allowing additional time for a litigation
    guardian to be appointed and take over the management of the affairs of the
    incapable person apply to an estate trustee. He points out that it takes time
    for an estate trustee to review the affairs of the deceased, and to obtain
    probate.

[6]

We are not persuaded the motion judge erred by dismissing the claim as
    statute barred. The grammatical and ordinary sense of the words of s. 7 are
    simply not elastic enough to apply to a deceased person and to construe an
    estate trustee to be a litigation guardian.

[7]

The appeal must be dismissed. The appellant did not rely on s. 38(3) of
    the
Trustee Act
,
R.S.O. 1990, c. T. 23, the application of
    which is preserved by s. 19 of the
Limitations Act
. We have not
    considered whether it has some bearing on the issue raised by this appeal.
    Costs are fixed in the amount of $6,500.00 inclusive.

R.G. Juriansz J.A.

David Brown J.A.

L.B. Roberts J.A.


