



COURT OF APPEAL FOR ONTARIO

CITATION: Levesque v. Crampton Estate, 2017
    ONCA 455

DATE: 20170605

DOCKET: C62912

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Raymond Levesque, Jr.,
Dianne Gagnon and Derek Levesque

Plaintiffs

and

The Estate of Father Dale
    Crampton
and
The Roman Catholic Corporation of the
Episcopal Archdiocese of Ottawa

Defendants (
Appellant
)

(
Respondent
)

Matthew Sammon, for the appellant

Heather Williams, for the respondent

Heard: April 21, 2017

On appeal from the order of Justice Martin S. James of
    the Superior Court of Justice, dated October 31, 2016, with reasons reported at
    2016 ONSC 6809.

Strathy C.J.O.:

[1]

This appeal requires the court to determine the
    limitation period applicable to a crossclaim brought by one joint tortfeasor
    against the estate of the other.

[2]

Section 38(3) of the
Trustee Act
,
    R.S.O. 1990, c. T.23 contains a two-year limitation period, running from the
    date of death of the wrongdoer, for an action against an executor or
    administrator for a wrong committed by the deceased.

[3]

Section 18 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B, addresses the commencement of the limitation period
    applicable to a claim for contribution and indemnity between joint tortfeasors.
    It provides that a claim for contribution and indemnity is discovered and,
    therefore, the limitation period begins to run, on the day on which the
    wrongdoer seeking indemnity is served with the plaintiffs claim.

[4]

When one joint tortfeasor has died and the other
    makes a crossclaim for indemnity against his or her estate, which limitation
    period applies? If, as in this case, the crossclaim is made more than two years
    after the death of the first tortfeasor, is the second tortfeasors claim for
    contribution and indemnity barred by the
Trustee Act
, even though it
    is made within two years of being served with the plaintiffs claim? Can the
    claim for indemnity against the estate be time-barred even before the surviving
    tortfeasor is sued?

[5]

The motion judge found that s. 18 of the
Limitations
    Act, 2002
applied and dismissed a summary judgment motion asserting that
    the crossclaim was time-barred by virtue of s. 38(3) of the
Trustee Act
.

[6]

For the reasons that follow, I would allow the
    estates appeal. The limitation period under s. 38(3) of the
Trustee Act
applies.
    The limitation period applicable to the crossclaim expires two years after the
    date of death of the tortfeasor from whom contribution or indemnity is sought.

A.

Facts

[7]

The plaintiff, Raymond Levesque, Jr., alleges he
    was sexually assaulted by a priest, Father Dale Crampton (Father Crampton),
    in 1976. Mr. Levesque was 12 years old at the time. Father Crampton pleaded
    guilty to indecent assault and, on appeal to this court, was sentenced to eight
    months imprisonment:
R. v. D.C.
(1987), 22 O.A.C. 47 (C.A.).

[8]

Father Crampton died in 2010. In 2013, Mr.
    Levesque and his family brought this action against Father Cramptons estate
    and the Roman Catholic Episcopal Corporation of Ottawa (RCECO), claiming that
    RCECO was vicariously liable for the priests conduct and breached independent
    duties owed to Mr. Levesque.

[9]

In 2014, RCECO issued a statement of defence and
    crossclaim against Father Cramptons estate, relying on the allegations of
    wrongdoing against Father Crampton in the statement of claim.

[10]

In 2015, the plaintiffs consented to an order
    dismissing their claim against the estate because it was barred by the two-year
    limitation period in s. 38(3) of the
Trustee Act
.

[11]

The estate brought a motion to dismiss the
    crossclaim, relying on s. 38(3) of the
Trustee Act
. For reasons I will
    summarize below, the motion judge dismissed the motion. First, however, I will
    set out the relevant legislation.

B.

Legislation

[12]

This appeal involves the intersection of three statutes
     the
Negligence Act
, R.S.O. 1990, c. N.1, the
Limitations Act,
    2002
and the
Trustee Act
. A more detailed examination of the
    statutory provisions and their purposes is a necessary starting place for what
    follows.

(1)

The
Negligence Act

[13]

Section 1 of the
Negligence Act
creates
    joint and several liability and a right of contribution and indemnity between
    joint tortfeasors. A claim for contribution and indemnity is typically asserted
    by way of crossclaim. However, the right to contribution and indemnity exists
    whether or not the plaintiff has sued the other tortfeasor(s). Section 2
    contains a mechanism for asserting the right. Section 1 provides:

Where damages have been caused or
    contributed to by the fault or neglect of two or more persons, the court shall
    determine the degree in which each of such persons is at fault or negligent,
    and, where two or more persons are found at fault or negligent, they are
    jointly and severally liable to the person suffering loss or damage for such
    fault or negligence, but as between themselves, in the absence of any contract
    express or implied, each is liable to make contribution and indemnify each
    other in the degree in which they are respectively found to be at fault or
    negligent.

[14]

As Feldman J.A. observed in
Waterloo Region
    District School Board v. CRD Construction Ltd.
, 2010 ONCA 838, 103 O.R.
    (3d) 81,

at para. 10, the purpose of contribution and indemnity

is to provide a mechanism to ensure that all
    those who caused or contributed to the plaintiffs loss or damage should share
    the financial responsibility for that loss. Therefore, the basis of the claim
    is that each person who is held liable to the plaintiff for all or part of the
    loss is also liable to contribute or is entitled to receive contribution
    proportionally to or from the other tortfeasors.

[15]

In this case, RCECO asserted its claim for
    contribution and indemnity against the estate of Father Crampton by way of
    crossclaim.

(2)

The
Limitations Act, 2002

[16]

Section 4 of the
Limitations Act, 2002
,

establishes a basic two-year limitation period, running from the day on
    which the claim is discovered. Section 5 sets out rules for determining when a
    claim is discovered. Section 18, which is particularly germane to this case,
    deals with claims for contribution and indemnity:

18(1) For the purposes of subsection
    5 (2) and section 15, in the case of a claim by one alleged wrongdoer against
    another for contribution and indemnity, the day on which the first alleged
    wrongdoer was served with the claim in respect of which contribution and
    indemnity is sought shall be deemed to be the day the act or omission on which
    that alleged wrongdoers claim is based took place.

(2) Subsection (1) applies whether the
    right to contribution and indemnity arises in respect of a tort or otherwise.

[17]

Thus, the general two-year limitation period
    runs from the date that the party claiming contribution and indemnity is served
    with the claim in respect of which contribution is sought.

[18]

In
Canaccord Capital Corp. v. Roscoe
,
    2013 ONCA 378, 115 O.R. (3d) 641, at para. 17, Sharpe J.A. observed that s. 18
    was part of a fundamental and comprehensive reform of the law of limitations in
    Ontario aimed at creating a clear and cohesive scheme for addressing limitation
    issues, one that balances the plaintiffs right to sue with the defendants
    need for certainty and finality.

[19]

Section 19(1) of the
Limitations Act, 2002
provides that a limitation period set out in or under another Act that applies
    to a claim to which the
Limitations Act, 2002
applies is of no effect
    unless the provision establishing it is set out in the Schedule to the
Limitations,
    Act 2002
. Subsection 19(4) provides that if there is a conflict between a
    provision in the other statute and the limitation period established by the
Limitations
    Act, 2002
, the limitation period established by the other statute
    prevails.

[20]

Section 38(3) of the
Trustee Act
is set
    out in the Schedule to the
Limitations Act, 2002.
It, therefore,
    prevails over a limitation period set out in the
Limitations Act, 2002
,
    in the event of a conflict.

(3)

The
Trustee Act

[21]

Section 38 of the
Trustee Act
provides:

(1) Except in cases of libel and
    slander, the executor or administrator of any deceased person may maintain an
    action for all torts or injuries to the person or to the property of the
    deceased in the same manner and with the same rights and remedies as the
    deceased would, if living, have been entitled to do, and the damages when
    recovered shall form part of the personal estate of the deceased; but, if death
    results from such injuries, no damages shall be allowed for the death or for
    the loss of the expectation of life, but this proviso is not in derogation of
    any rights conferred by Part V of the
Family Law Act
.

(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 persons 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
. [Emphasis
    added.]

(3) An action under this section
    shall not be brought after the expiration of two years from the death of the
    deceased.

[22]

Section 38 of the
Trustee Act
alters the
    common law. The common law rule was that no action in negligence could be
    brought on behalf of or against a deceased person: see
Waschkowski v.
    Hopkinson Estate
(2000), 47 O.R. (3d) 370 (C.A.), at para. 2. This rule
    was amended by statute in many jurisdictions, including Ontario, which did so
    in 1886. Section 38 is the successor to that legislation.

[23]

In
Waschkowski
, the purpose of the
    legislation was described as follows, at paras. 8-9:

In s. 38(3) of the
Trustee Act
, the limitation period runs from a death. Unlike cases where the
    wording of the limitation period permits the time to run, for example, from when
    the damage was sustained (
Peixeiro
) or when
    the cause of action arose (
Kamloops
), there is
    no temporal elasticity possible when the pivotal event is the date of a death.
    Regardless of when the injuries occurred or matured into an actionable wrong,
    s. 38(3) of the
Trustee Act
prevents their
    transformation into a legal claim unless that claim is brought within two years
    of the death of the wrongdoer or the person wronged.

The underlying policy considerations of this
    clear time limit are not difficult to understand. The draconian legal impact of
    the common law was that death terminated any possible redress for negligent
    conduct. On the other hand, there was a benefit to disposing of estate matters
    with finality. The legislative compromise in s. 38 of the
Trustee
    Act
was to open a two-year window, making access to a
    remedy available for a limited time without creating indefinite fiscal
    vulnerability for an estate.

C.

The motion judges decision

[24]

In the court below, the Crampton estate contended
    that the crossclaim failed for the same reason the plaintiffs action against
    the estate was dismissed  the operation of s. 38(3) of the
Trustee Act.
RCECO, on the other hand, argued that the applicable limitation period was s.
    18 of the
Limitations Act, 2002
, which applies to crossclaims. It
    argued that any other result would lead to an injustice because the right to
    make a crossclaim could expire even before the defendant had been sued.

[25]

The motion judge noted that he was faced with
    two competing policy objectives, but held that he was bound by the decision of
    this court in
Waterloo
. In that case, a five-member panel of this
    court held that defendants could bring a claim for contribution and indemnity
    against another defendant in circumstances in which the plaintiffs right of
    action against that defendant was time-barred.

[26]

The motion judge found there was no conflict
    between the two limitation provisions, but if there was, he preferred the
    analysis of this court in
Waterloo
and in
Canaccord
.

[27]

The motion judge concluded that s. 18 of the
Limitations
    Act, 2002
trumped the
Trustee Act
, and the fact that s. 38(3) of
    the
Trustee Act
is included in the Schedule to the
Limitations
    Act, 2002
did not affect this conclusion.

D.

Issue

[28]

Although the parties express it differently, the
    issue on this appeal is whether the motion judge correctly found that the respondents
    crossclaim against the Crampton estate was not time-barred by s. 38(3) of the
Trustee
    Act.

E.

The parties submissions

[29]

The appellants submission is that RCECOs
    crossclaim is an action, pursuant to rule 1.03(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 and that it is barred by s. 38(3) of the
Trustee
    Act.
Since the provision is mentioned in the Schedule to the
Limitations
    Act, 2002
, it prevails over the two-year limitation period in s. 18(1) of
    the
Limitations Act, 2002
.

[30]

The appellant submits that this is consistent
    with the policy goal of the legislation and its interpretation. The policy goal
    of s. 38(3) is finality in respect of claims against estates. The decision in
    this case would expose executors and administrators to open-ended claims,
    impeding their ability to wind up an estate, and undermine the purpose of the
    legislation.

[31]

The appellant also submits that as a matter of
    statutory interpretation, s. 18(1) of the
Limitations Act, 2002
is
    inapplicable because the claim is not by one wrongdoer against another, but
    rather a claim by one wrongdoer against the estate of the other. The estate is
    not a wrongdoer.

[32]

The appellant did not pursue its submission that
    the crossclaim is a derivative claim and is statute-barred because the main
    claim is time-barred as against the estate. This court rejected a similar
    proposition in
Waterloo
.

[33]

The respondent, on the other hand, says that the
    applicable limitation period is found in the
Limitations Act, 2002
. It says that s. 38(2) of the
Trustee Act
does not apply,
    because it contemplates that the person wronged  i.e., the plaintiff  can
    bring an action against the estate. It does not address a crossclaim.

F.

Analysis

(1)

The application of the statutes

[34]

I turn to the question of whether only one statutory
    limitation period applies or whether both apply, creating a conflict. In the
    latter event, it becomes necessary to resolve the conflict.

a)

The
Trustee Act

[35]

I will first consider whether the
Trustee
    Act
applies to the crossclaim against the estate of Father Crampton, as
    the appellant asserts.

[36]

I agree with the appellants submission that a
    crossclaim is an action and, therefore, falls within s. 38 of the
Trustee
    Act.
As the appellant notes, a crossclaim is defined as an action by rule
    1.03(1) of the
Rules of Civil Procedure
. Absent the
Trustee Act
,
    there would be no mechanism for a claim for contribution and indemnity to be
    brought against an estate. Treating a crossclaim as an action promotes the
    purpose of the legislation, namely to amend the common law rule that a cause of
    action died with the tortfeasor.

[37]

The respondent argues that s. 38(3) of the
Trustee
    Act
has no application to a claim for contribution and indemnity against
    the estate of a deceased person. It relies on the wording of s. 38(2), which
    provides, in summary, that if a deceased person has committed a wrong to
    another person, the person wronged may maintain an action against the
    executor or administrator of the deceased person. The respondent says that the
    person wronged refers to the plaintiff in the action, not to one joint
    tortfeasor who seeks contribution and indemnity from another. Contribution and
    indemnity, it says, is a right conferred by the
Negligence Act,
with
    its own limitation period under s. 18(1) of the
Limitations Act, 2002
.

[38]

In my view, this submission fails for the reason
    set out earlier. There was no right at common law to sue the estate of a
    deceased person. That right is conferred by the
Trustee Act
. A claim for contribution and indemnity against a deceased person
    can only be made pursuant to the
Trustee Act
.
    Since the purpose of s. 38 of the
Trustee Act
is to enable claims to
    be brought against estates, it is reasonable to treat a person seeking
    contribution and indemnity as a person wronged. The wrong suffered is having
    been required to pay more than the share of damages proportionate to the
    persons fault. Thus, I reject the respondents submission that the
Trustee
    Act
limitation period has no application.

b)

The
Limitations Act, 2002

[39]

In my view, the limitation period in the
Limitations
    Act, 2002
is also plainly applicable to the crossclaim, by the combined
    operation of ss. 4, 5 and 18(1). By virtue of ss. 5 and 18(1), the claim for
    contribution and indemnity is discovered on the day the first alleged wrongdoer
    is served with the claim in respect of which contribution and indemnity is
    sought. Section 4 sets out the basic two-year limitation period from the date
    of discovery. There is no merit to the appellants submission that s. 18(1)
    applies to claims against a joint tortfeasor, but not to claims against the
    joint tortfeasors estate. The estate stands in the place of the deceased.

(2)

Resolving the conflict  does the
Trustee Act
trump the
Limitations
    Act, 2002
?

[40]

As both limitation periods apply, it is necessary
    to resolve the conflict.

[41]

Relying on
Waterloo
and
Canaccord
,
    the motion judge found that s. 18(1) of the
Limitations Act, 2002
trumps
    other limitation periods that arguably apply.

[42]

In my respectful view, the motion judge erred in
    concluding that this courts decision in
Waterloo
was dispositive. In
Waterloo
, a severe storm blew down the walls of a new school gymnasium. The
    plaintiff sued various parties involved in the construction of the gymnasium,
    including the architects, construction company and engineering firm. Several of
    the defendants brought crossclaims seeking indemnification from the engineering
    firm. The plaintiffs claim against the engineering firm was statute-barred.

[43]

This court rejected the argument that because a plaintiffs
    claim against a defendant is statute-barred, the crossclaims of the other
    defendants against that defendant are also statute-barred. To that extent,
Waterloo
supports the motion judges decision.

[44]

But in
Waterloo
, unlike this case, the
    limitation period applicable to the crossclaim was the basic two-year
    limitation period, subject to the deemed discovery rule in s. 18 of the
Limitations
    Act, 2002.
There was no potential conflict between that limitation period
    and another one, such as s. 38(3) of the
Trustee Act.
This
    distinguishes
Waterloo.

[45]

It also distinguishes
Canaccord.
Canaccord

involved an indemnification agreement in an employment
    contract. This agreement required the employee to indemnify Canaccord for any
    claims made against Canaccord arising out of the employees acts or omissions.
    Canaccord settled a claim against it and the employee. Canaccord then requested
    indemnification pursuant to the employment agreement, but the employee resisted
    the claim for indemnification. Nearly three years after the delivery of the
    statement of claim, Canaccord brought an action against the employee claiming
    damages for breach of contract. The issue before the court was whether the limitation
    period in s. 18 applied to this type of claim. This court concluded that it
    did.

[46]

Neither case is authority for the proposition
    that s. 18 trumps other limitation periods. In
Waterloo
and
Canaccord
, there was no
    conflicting limitation period that applied to the claims for contribution and
    indemnity. Such a conflict exists here.

[47]

By the terms of s. 19(4) of the
Limitations
    Act, 2002
, limitations provisions set out in the Schedule prevail over the
    provisions of the
Limitations Act, 2002
. As s. 38(3) of the
Trustee
    Act
is set out in the Schedule, it must prevail if it applies.

[48]

This court reached the same conclusion in
Bikur
    Cholim Jewish Volunteer Services v. Penna Estate
, 2009
    ONCA 196, 94 O.R. (3d) 401, at para. 26:

In these circumstances, s. 19(4) is clear. If there is a
    conflict between a limitation period established by a provision referred to in
    s. 19(1), such as s. 38(3), and a limitation period established by any other
    provision of the
Limitations Act, 2002
, the limitation period
    established by a provision such as s. 38(3) prevails.

[49]

The
    motion judge distinguished
Bikur Cholim
on the basis that it did not
    involve a claim for contribution and indemnity. While this is true, nothing
    about the courts holding depended on whether the claim was for contribution
    and indemnity or something else. The question was the interaction between a
    limitation period established by a provision of the
Limitations Act, 2002
(which would include s. 18) and a limitation period set out in the Schedule to
    the
Limitations Act, 2002
.

[50]

Further,
    the result reached in
Bikur Cholim

is consistent with
    the nature, purpose and history of the
Trustee Act
provision.

[51]

The
Limitations Act, 2002
is based on
    discoverability. Section 18(1) deems the claim to be discovered on the date the
    claim is served on the person who seeks contribution or indemnity. In contrast,
    s. 38(3) of the
Trustee Act
is a hard or absolute limitation period.
    It is triggered by a fixed and known event  the death of the party against
    whom a claim is made.

[52]

The purpose of the
Trustee Act
limitation
    period is clear. It is to provide a remedy for a limited time, without
    indefinite fiscal vulnerability to the estate:
Waschkowski
, at para.
    9.

[53]

As this court observed in
Independence Plaza
    1 Associates, L.L.C. v. Figliolini
, 2017 ONCA 44, limitations statutes
    reflect public policy about efficiency and fairness in the justice system. See
Manitoba
    Metis Federation Inc. v. Canada (Attorney General)
, 2013
    SCC 14, [2013] 1 S.C.R. 623, at paras. 231-34 (
per
Rothstein J. in dissent, but not on this point). They have several
    goals. They promote
finality and
    certainty in legal affairs by ensuring that potential defendants are not
    exposed to indefinite liability for past acts. They reflect a policy that,
    after a reasonable time, people should be entitled to put their pasts behind
    them and should not be troubled by the possibility of stale claims emerging
    from the woodwork. They ensure the reliability of evidence. And they promote
    diligence, because they encourage litigants to pursue claims with reasonable
    dispatch.

[54]

As Sharpe J.A. noted in
Canaccord
,

at
    para. 24, the purpose of the
Limitations Act, 2002
is to balance the
    plaintiffs right to sue with the defendants need for certainty and finality.

[55]

The legislative history of the
Limitations
    Act, 2002
, dating back to 1969, reflects a concern about the
Trustee
    Act
limitation period and no less than five recommendations or legislative
    initiatives to abolish it.
[1]
The fact that it was expressly retained in the Schedule

reflects
    a clear policy choice in favour of certainty and finality in estate matters
    after a fixed period of two years.

[56]

As this court noted in
Bikur Cholim
, at
    para. 25, the result of the application of the strict rule in the
Trustee
    Act
can sometimes be harsh. In this case, its application results in a
    claim being time-barred before it is discovered. In
Bikur Cholim
,
    the court noted

that the statutes harshness may, in
    some circumstances, be mitigated by common law rules. That was the case, for
    example, in
Giroux Estate v. Trillium Health Centre
(2005), 74 O.R.
    (3d) 341 (C.A.), where the common law doctrine of fraudulent concealment
    applied. No such remedy is available here.

G.

Disposition

[57]

For these reasons, I would allow the appeal with
    costs to the appellant fixed at $6,000, inclusive of disbursements and all
    applicable taxes. If the parties are unable to resolve the disposition of costs
    in the court below, they may make written submissions within 60 days of the
    release of these reasons.

Released: G.R.S. June 5, 2017

G.R. Strathy C.J.O.

I agree. E.E.
    Gillese J.A.

I agree. G. Pardu
    J.A.





[1]
Ontario Law Reform
    Commission,
Report on Limitation of
    Actions
(Toronto: Department of the Attorney General, 1969); Ontario,
Discussion Paper on Proposed Limitations Act
(Toronto:
    Ministry of the Attorney General, 1977); Bill 160,
An Act to revise the Limitations Act
, 3rd
    Sess., 32nd Leg., Ontario, 1983; Consultation Group on the Limitations Act,
A Consultation Draft of the General Limitations
    Act
(Toronto: Ministry of the Attorney General, 1991); and Bill 99,
An Act to revise the Limitations Act
, 2nd
    Sess., 35th Leg., Ontario, 1992.


