





CITATION:
Kenzie v. Kenzie, 2011
      ONCA 53



DATE: 20110120



DOCKET: C52590



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and Lang JJ.A.



BETWEEN



Ian Kenzie



Applicant (Appellant)



and



Joan Marjorie Kenzie, Stephen Agar Kenzie
and
          Wendy Michael



Respondents (
Respondents
)



Simon J. Adler and Derek Johnson, for the appellant



Daved Muttart, for the respondent, Joan Marjorie Kenzie



No one appearing for the respondent, Stephen Agar Kenzie



Heard: January 18, 2011



On appeal from the order of Justice
          Susan E. Healey of the Superior Court of Justice, dated August 5, 2010.



APPEAL BOOK ENDORSEMENT



[1]

The appellant argues that he is entitled to declaratory relief, and that
    under s. 16(1)(a) of the
Limitations Act
, there is no limitation period
    barring his application.  We do not agree with the appellants argument.

[2]

Implicit, if not explicit, in the appellants application is his intent
    to seek a finding or findings that would be
res judicata
in other
    proceedings.  In our view, that is consequential relief, which takes the
    appellants application out of s. 16(1)(a) of the
Limitations Act
. 
    Therefore, we agree with the application judge that this application as framed
    on this record is statute barred.

[3]

If the appellant has any viable claim  and we make no determination
    whether he does or does not  it is by an application for an order that the
    respondent pass the accounts.

[4]

The respondent concedes that the appellant is entitled for an order for
    the passing of accounts.  Whether the
Limitations Act
bars any claim in
    the different context of a passing of accounts is an issue to be decided by the
    judge on the passing of those accounts.

[5]

The appeal is dismissed, with costs in the agreed-upon amount of
    $11,000, inclusive of disbursements and all applicable taxes.


