*This blog was written by Ruth Paul, student-at-law*

In Ontario, the Limitations Act requires a proceeding to be commenced within 2 years of a claim being discoverable. The Act also imposes an ultimate limitation period in which a proceeding must be commenced within 15 years of the date the act or omission occurred. The date of discoverability and/or the date the act or omission occurred are important considerations in determining whether a claim can proceed.  A party that fails to commence a claim within the prescribed time period is simply out of luck and cannot turn to the Court for relief.

The recent decision in Tessaro v. Gora, 2024 ONSC 198 provides clarity on how limitation periods can affect beneficiaries that commence a claim against a testator’s lawyer for a poorly written will. Mr. Ryczkowski died on July 16, 2018. In 1991, Mr. Ryczkowski retained John Leonard Zigmund Gora (the “defendant” or “Mr. Gora”) to draft his will. The will named his three sisters (Monica, Irene, and Virginia) as beneficiaries to the estate. Monica predeceased Mr. Ryczkowski and was survived by her two daughters (the “nieces”).

Upon Mr. Ryczkowski’s death, it was discovered that the will was poorly drafted. Notably, the will was unclear on how Monica’s share of the estate would be distributed: whether her share would pass onto her daughters or whether it would be distributed amongst the surviving sisters, making them 50% beneficiaries. On December 24, 2020, the nieces commenced an action against Mr. Gora for negligently drafting the will. On December 29, 2020, Irene and Viriginia filed a subsequent claim against Mr. Gora. While Irene, Viriginia, and the nieces (collectively, the “plaintiffs”) settled the issue of interpreting the will out-of-court, the parties continued their claims against Mr. Gora on the basis that his negligent drafting forced them to settle and they received less than what Mr. Ryczkowski intended them to receive.

All parties agreed that the s. 24(5)(1) transition provision of the Limitations Act applied, making the deemed date of the act or omission January 1, 2004. Mr. Gora submitted that since January 1, 2004 was the deemed date of occurrence, the ultimate 15-year limitation period expired on January 1, 2019. Since both the actions were commenced in December 2020, Mr. Gora submitted that the plaintiffs were out of time and barred from pursuing the actions.

The plaintiffs relied on s. 22 of the Succession Law Reform Act, which states that “a will speaks and takes effect as if it had been made immediately before the death of the testator.” The plaintiffs claimed that since beneficiaries have no rights under a will until a testator dies, they could not sue Mr. Gora until Mr. Ryczkowski died in 2018.

The issue before the Court was whether the 15-year limitation period began on the deemed day of the act (i.e., January 1, 2004) or when Mr. Ryczkowski died in 2018. The Court found that the claims of either party hinged on the meaning of the “act of omission on which the claim is based” under the Limitations Act.

Where a statute is unclear or ambiguous, the Court uses the modern approach to statutory interpretation. This approach requires the words of a statute “be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” When interpreting a statute, the Court cannot simply rely on the text of statute but must consider the entire contextual matrix of the legislation.

Statutory limitation periods aim to avoid the risk of indeterminate liability. Indeterminate liability imposes a looming threat of litigation and requires people to plan their affairs with this overarching threat in mind. For example, people may feel inclined to store documents indefinitely in anticipation of possibly being sued one day. Indeterminate liability also undermines the administration of justice. The reliability of evidence declines over time. As a case ages and evidence becomes more unreliable, the risk of an unjust decision being made heightens.

The plaintiffs claimed if the defendant’s position is accepted and a testator lives for 15 years after signing a poorly drafted will, beneficiaries lose their ability to sue a drafting lawyer for negligence. Justice Myers considered the legislative intentions behind the Limitations Act. Hansard evidence demonstrated that the Legislature considered the risk of rights being taken away before they were discovered when drafting the statute. In response, the Legislature created exceptions within the Limitations Act to mitigate against certain unjust outcomes. For example, where a debtor acknowledges liability for a liquidated debt, s. 13 deems the date of the act or omission as the date of acknowledgement rather than the earlier date that the debt first became due. Justice Myers found that the Legislature weighed competing policy goals when drafting the Limitations Act. The ability to amend statutes and create statutory exceptions are within the powers of elected officials in the Legislature, not unelected judges of the Court.

While s. 38(1) of the Trustee Act allows estate trustees to sue for damages to the person or property of the deceased “with the same rights and remedies as the deceased would, if living, have been entitled to do”, the Court found the provision inapplicable because neither Mr. Ryczkowski nor his estate had an interest in the plaintiffs’ claims. The plaintiffs’ claims lied purely with themselves because only they were affected by any reduction of their share of the estate. Furthermore, Mr. Ryczkowski’s ability to sue the defendant expired on January 1, 2019. The Trustee Act does not extend limitation periods that expire after a testator dies.

Justice Myers acknowledged that this decision puts future beneficiaries in a unique position. Beneficiaries have a common law right to sue a testator’s drafting lawyer for negligently drafting a will. However, it is not the Court’s role to draft legislation. The Court must interpret the statute to give effect to its legislative purpose. It is the Legislature’s prerogative to consider social policy and draft legislation accordingly.

This decision has implications for testators and beneficiaries alike. It may compel testators to re-examine, and possibly update, their wills to ensure that it reflects their intentions. It also confirms that the Limitations Act restricts the common law rights of beneficiaries and in some cases, beneficiaries may lose their ability to sue negligent drafting lawyers. As this decision is recent, it will be interesting to see how it will be treated in practice and whether it results in any legislative changes.